During last year’s presidential campaign, Joe Biden repeatedly condemned the Trump administration’s violent tear gassing of peaceful protesters in Lafayette Square. On June 2, the day after the attack, Biden made a speech denouncing the park’s clearance as “violence that’s being done by the incumbent president to our democracy and to the pursuit of justice.” Biden called on President Donald Trump to “open the US Constitution” where “he’d find the First Amendment.”
“It protects ‘the right of the people peaceably to assemble, and to petition the government for a redress of grievances,’” he said.
But this week, Biden’s Justice Department successfully convinced a federal court to dismiss Lafayette Square protesters’ lawsuit against Trump, former Attorney General William Barr, and other federal officials for violations of their First Amendment rights, taking advantage of a glaring gap in federal law.
In her 51-page opinion released on Monday, U.S. district judge Dabney Friedrich acknowledged that the protestors had “plausibly alleged a constitutional violation” of their right to protest, which “would have been clear to every reasonable officer at the time it occurred.” She allowed their case to go forward against law enforcement officials from Washington D.C. and Arlington, Virginia, rejecting local police departments’ arguments for qualified immunity. But the judge ruled that federal officials could not be sued for the exact same violations of the First Amendment.
Rather than recognizing the obvious truth that led to the crackdown—that President Trump harbored animus toward the protestors demonstrating against police violence—the judge bought in to the Biden Justice Department’s after-the-fact explanations about the need to protect the president. ”When it comes to presidential security,” she wrote “the presence of a large crowd of protesters, even a peaceful one, near the president implicates presidential security questions.” With that, the government had provided an excellent pretext for the judge to dismiss the case against the federal officials.
The plaintiffs’ lawyers rightly denounced the decision. Scott Michelman, the legal director of the ACLU of the District of Columbia, warned in a statement that “[t]oday’s ruling essentially gives the federal government a green light to use violence, including lethal force against demonstrators, as long as federal officials claim to be protecting national security.”
As appalling as that conclusion is, it follows recent Supreme Court precedents, which, in the words of conservative federal judge Don Willett, have created “something resembling a Constitution-free zone” for federal officials. “If you wear a federal badge, you can inflict excessive force on someone with little fear of liability,” Willett wrote.
The officers in this case had tear gas and rubber bullets, but what if it were live ammunition? Armed with the “national security” justification, the ruling opens the door for federal officials to escalate their attacks on civil protesters and to do so with impunity.
It’s important to note that the right for individuals to sue federal officials for constitutional rights violations is not explicitly written into federal law. And while the Supreme Court ruled in the 1971 case Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics that such a right does exist, in more recent decisions the court has chipped away at the Bivens standard until there was nothing left of it, eliminating the ability to sue federal officials even in a case where a border patrol agent killed a child without justification.
President Biden and the Justice Department should have advocated for an end to the loophole that allows the federal government to escape liability for violating the Constitution. Instead, the Justice Department argued that federal officials should be immune from such lawsuits, noting that future violations would be unlikely under Biden.
But a presidential transition should not ease concerns about federal officials’ ability to abuse their power with impunity. Even if we wanted to take the Biden administration at its word that they won’t direct a repeat of the Lafayette Square teargassing, who’s to say how the next administration will treat those seeking to protest the actions of their government? And no president controls the conduct of the thousands of federal officials—from Border Patrol to the line prosecutors at the Justice Department—who could do harm to constitutional rights.
In this country, government officials are able to hide behind broad legal protections when they violate individuals’ rights. When largely peaceful protesters are violently cleared from an area using pepper spray and batons, they should be able to seek damages from the officers who violated their constitutional right to protest—a right guaranteed by the very First Amendment to the Constitution.
Because Americans can apparently no longer rely on the courts to protect these important rights, it is past time for Congress to step in and pass legislation establishing the right for individuals to sue federal officials for when they violate a person’s constitutional rights. All it would require is adding just five words (“or of the United States”) to existing civil rights law, making it clear that individuals can sue federal officials, in addition to state and local officers.
It may be too late for the peaceful protesters in Lafayette Square and Sergio Hernandez Guereca—the boy murdered by a border patrol agent a few years ago—but we know these will not be the last instances in which federal officers abuse their power. And without a way to hold federal officials accountable for their abuses, we cannot hope for an end to violence committed by government officials against members of the public and we can’t even guarantee certain fundamental rights.