Yes, You Should Be Able To Sue Federal Government Officials Too

In 1971, the Supreme Court ruled that an “implied cause of action” existed in the case of federal agents violating an individual’s constitutional rights, despite there not being a federal statute that explicitly guaranteed the ability of individuals to sue federal government officials in the case of a rights violation in the books. Justice Brennan delivered the majority opinion of the Court, saying “That damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials should hardly seem a surprising proposition. Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty.” This case set the precedent for an inferred right of action against federal rights violations. But in recent decades we’ve seen new supreme court decisions chipping away at that precedent.

One way to combat this slow erosion for recourse against rights violations would be via a law, such as the law that guarantees a right of action against state officials who engage in rights abuses: 42 U.S.C §1983. This law explicitly states that state officials that violate individuals’ rights can be sued by those individuals. But because of the language of this law, it only applies to state officials. Understanding this, a group of lawmakers, including Representative Hank Johnson (D-GA), Representative Jamie Raskin (D-MD), Senator Sheldon Whitehouse (D-RI), and Senator Alex Padilla (D-CA), introduced the Bivens Act of 2021. This bill makes one simple change to 42 U.S.C §1983, literally changing a single sentence, and expands the law to federal government officials opening the door to recourse in the case of federal officials committing a rights abuse.

The supreme court chipping away at the precedent set in Bivens has closed the doors for any recourse for a multitude of victims of federal agents, including a 70-year-old Vietnam vet who was beaten by federal agents, a family who lost their son to a cross-border shooting carried out by CBP, and a woman who was wrongfully convicted due to the false testimony of a federal agent. Explicitly naming federal officials in 42 U.S.C §1983 could prevent these sorts of tragedies from ever happening again, or at the very least allow their families some sort of justice.

It’s time to close the loophole the courts have allowed federal agents. That’s why we have signed onto a coalition letter urging congress to pass the Bivens Act of 2021. We need your help too. Please consider calling your lawmakers and urging them to cosponsor the Bivens Act of 2021. Call now! You can also send a letter to your lawmaker here: send a letter!

It’s Time to Shore Up Fourth Amendment Protections at the Border

Since the Fourth Amendment passed in 1791, it has contained a “border search exception.” This exempts customs officials from its normal requirement of probable cause before they conduct “routine searches” of the person, papers or effects of someone crossing the border.

In the 1950s, federal regulations substantially extended this exception for the Customs and Border Police. There would now be a “border region” of the US, defined as being within 100 miles of the US border or of international waters around the coast, where CBP would be able to conduct “routine searches” without probable cause. The border region includes roughly two-thirds of US residents.

Searches have also substantially changed. The Constitution was not written with our current, highly digital world in mind, and in the 1790s, it wasn’t feasible for somebody to cross a border with a complete record of their life and movements in their pocket.

Up until 2014, the government asserted that it did not need a warrant to search the phones of people who had been arrested. In a landmark ruling in Riley v. California, the supreme court rejected this, and enshrined that law enforcement needs a warrant to search an electronic device even if the owner had been arrested. They reasoned that electronic devices, such as cellphones, contain such a vast amount of personal information that law enforcement must get a warrant to search them. The court wrote:

“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.”

But the Supreme Court did not address whether this general requirement also applies at the “border,” and because of that there is a circuit split about whether or not these protections actually do apply there. Academics, journalists and members of groups CBP disfavors, should not have to take elaborate precautions against CBP agents seizing devices teeming with sensitive data. Indeed, a fully originalist argument has been made that papers are categorically unseizable.

Instead of waiting on a conservative Supreme Court to rule in favor of Americans’ digital privacy, a group of bipartisan law makers, including Ron Wyden, Rand Paul, Ed Markey and Ted Lieu, have introduced legislation in both the House and Senate to clarify the law in regards to border searches of electronic devices. The Protecting Data at the Border Act would:

  • Require Border Patrol to get a warrant based on probable cause before they can conduct a search of a person’s digital devices
  • Prohibit Border Patrol agents from delaying (for more than 4 hours) or denying entry into the United States if someone refuses to hand over passwords or PINs to an electronic device
  • Require law enforcement get probable cause before seizing a device
  • Require written consent for border agents to search a digital device, or provide access or info for online accounts

We can’t wait for the Supreme Court to act. Please consider reaching out to your legislators and telling them to cosponsor the Protecting Data at the Border Act. You can call your legislators here!