One of the lessons one learns in law school is that there cannot be a right if there is no available remedy.
When you think about it, that makes sense. If I have a right to do X, and you prevent me from doing X, I should be able to sue you. if there is no way to punish you for interfering with my ability to do X, the “right” is non-existent–a fiction.
Which brings me to the Minneapolis murder of Renee Good by ICE officer Jonathan Ross.
A recent essay in the New York Times was co-authored by two giants of the constitutional legal community, Erwin Chemerinsky and Burt Neuborne. In that essay, they addressed the question whether Good’s family has a remedy–whether they can even bring a lawsuit against an ICE officer who shot an unarmed mother of three, muttered “Fucking bitch,” and walked away.
Had Good been shot by a state or local officer, there would be no question. For 150 years, a law known as “Section 1983” has permitted suits against those acting “under color of state law.” The Civil Rights Act of 1871 expressly made it a crime for state or local officers to violate a person’s rights. As the authors note, that act also allows “civil suits for monetary damages or injunctive relief against any state or local employees who, in the course of their work, violate the Constitution or federal laws.”
If a city adopts an ordinance that violates the First Amendment, a citizen can sue the city under Section 1983. If a police officer uses excessive force, which the Supreme Court has held violates the Fourth Amendment, the victim can sue the officer under Section 1983. Section 1983 suits account for a significant part of the workload of federal courts.
When I was Executive Director of Indiana’s ACLU, we routinely brought cases under Section 1983. (A related federal statute that is equally important allows the recovery of legal fees if such a lawsuit is successful–without such a provision, only wealthy people could afford to vindicate their rights.)
Section 1983 only applies to officials acting under the authority of state law. The Minneapolis police officer who murdered George Floyd was sued under that section. But the ICE officer who killed Renee Good is a federal employee–he cannot be sued under Section 1983. And it turns out that there is no federal law authorizing suits against federal officials who violate a citizen’s constitutional rights.
In light of this, in 1971, the Supreme Court came up with a fix of its own: allowing people whose constitutional rights have been violated to sue for monetary damages without needing a federal statute.
In that case, the Court said the plaintiff could sue directly under the Fourth Amendment–and for a decade the court followed that precedent.
But after 1980, the court sharply shifted course. Not once since then has it allowed Bivens suits (as they came to be known) to go forward. In case after case, the court has precluded people whose rights have been violated from suing even when they suffered great injuries….
The Supreme Court repeatedly has said that if Congress wants to authorize such suits, it can enact a law, similar to Section 1983, that allows suits against federal officers who violate the Constitution. Such a law is important to ensure that those whose rights are violated can receive a remedy, including compensation for their injuries. Civil liability is also a crucial way of deterring wrongdoing.
There is no credible argument for continuing this state of affairs. Passage of a law mirroring Section 1983, but for federal officials, would simply level the playing field. There is no reason to exempt federal lawbreakers from rules that apply to their state and local counterparts–no reason to protect federal actors who knowingly violate the constitutional rights of citizens. (It’s important to note that a right to bring suit isn’t a right to win such lawsuits–there are legal and factual defenses available that protect officials against ill-founded accusations.)
As the law now stands, Jonathan Ross may escape liability for an action that would clearly be illegal if he was employed by local or state police. The absence of a remedy for Good’s family is the absence of a right–in this case, a right not to be murdered by an agent of the federal government. (And it was murder, as anyone who viewed the multiple videos available could clearly see.)
The essay concludes with a call for a “Renee Good Act” that would close this gaping loophole. I can think of few things more appropriate than passing such a law and naming it after Good.
Unfortunately, there is now another Minnesota victim for whom the act can be named. He was beaten and murdered, and was still shot after his body went limp. I would say he was assassinated. However, I don’t watch the videos because I already dislike the police and our other “law enforcement” agencies. And, not being able to sue these bastards, makes my feelings even stronger.
In a fascist country, as we have been for a while, we have few rights. Even when you do have a case, getting it past the corrupt court system is very difficult. They all protect each other. It says a lot to me that most local PDs vote Republican, and it’s not because they are pro-lethal weapons.
And why don’t our federal lawmakers create a law allowing citizens to bring lawsuits against federal employees? It’s rather obvious. It’s for the same reason there are no laws against insider trading, accepting bribes/kickbacks, or taking money out of politics. It’s a corrupt and protected racket, which is very hard to hold accountable, and the oligarchs don’t mind either.
And, it seems like every corruption ring either leads back to a crooked cop or a corrupt lawmaker. “The laws are for thee, but not for me.”
The Kirk case I’m researching right now in AZ has all the corruption you’d ever want to see, and, of course, a state lawmaker and a corporate insider are involved. Oh, and a lot of LLCs where private and public monies mix through what AI calls a “financial loop.” And without a subpoena, they just thumb their noses at you.
And this is just par for the course…
Yes; we now have a second DEAD legal protester whose killer(s) are protected by Trump’s expanded immunity to his decisions to protect them or immediate pardon if a legal loophole slips him/them through the cracks and he/they are convicted. Their full face masking prevents identification by all witnesses and the many cell phone films we have seen to prove the murder. We have no protection under our laws today due to the current federal government being protected by the three main Articles of the Constitution; brought about by the infighting and cowardice within both political parties which brought this country beyond Minneapolis to what happened yesterday and will continue to allow Trump to end the 2026 elections and set the future standard for our leadership as his legacy.
WE must find the REMEDY to our RIGHT which is rather backward from the meaning of the blog today.
“There is no reason to exempt federal lawbreakers from rules that apply to their state and local counterparts–no reason to protect federal actors who knowingly violate the constitutional rights of citizens.”
We are at the mercy of the current Republican party due to the cowardice of both parties and those millions who did not vote but elected Trump by sitting on their asses.
Yes. Remedies. Todd and JoAnn summarize the fix we are in thanks to those who presume power in our government. The very fact that “law”makers do nothing to protect citizens from the vagaries of creatures like Stephen Miller and Tom Homan speaks volumes about the Republican party and complicit Democrats. All Citizens United has produced, it seems, are the worst and most corrupt politicians imaginable. For every Tammy Duckworth, we have a dozen Gym Jordans.
Ridding the world of Stephen Miller and Tom Homan would be a good start toward remedies. Then, the rest of the gangsters in the White House and SCOTUS should follow them to the Hell of their own making.
Professor-for decades, I have admired your thoughtful logic. And, today, I still do.
The time to enact laws to protect American citizens from their government has passed. We are all in danger even those who voted for Trump, although they will not understand this until the wolf is at their own door. Meanwhile, Trump with the backing of the Republican Party continues to push the citizens into anarchy so that he can use the insurrection act to halt any and all political opposition. Thinking that just expanding the law that allows citizens to sue the government for damages is, at this point, naive. We have crossed a line into a world of brutish violence waged against innocent citizens by their own government using the tactics of Nazi Germany.
There are no remedies for the murders that will bring those people back. Justice will never be fully realized for them.
The Congress could stop this now. The corporate overlords who are complicit in their silence have shown us who they are. Believe them. 13 Fortune 500 corporations are headquartered in Minneapolis. Not a word from any of them.
The mad king has told all those hardcore 2nd Amendment NRA members that only criminals carry weapons on our streets. Karma is a real b*tch.
RESIST.
I’m weeping ’cause I know not what else to do. Counsel, anyone?
IF!
If there will be a chance to pass such a law, it will be after this return to 1936 Berlin, for there is no way such thing will happen with the slightest GOP margin in congress. We just saw several Democrats vote for the monies to further fund ICE.
What the hell is going on?
The timing of today’s post is horrifying. The point is, though, that you guys run that same timing risk every day. It’s just a probability issue that flips to ‘1’ on too regular a basis.
Todd, the videos are horrific. Don’t watch. They do show that it is murder. The guy had been pepper-sprayed in the face twice already, was on the ground, one agent had already taken his gun from his waistband and started walking away, and _then_ the shooting started. He’d just stepped in to protect a woman who’d clearly been assaulted, not by fighting but by putting his body in front of hers, and he paid for it with his life. The official statements are complete and utter–and obvious!–lies.
Note, though, that the Federal officials refused to allow local authorities access to examine the crime scene. The local authorities got a judge to sign a warrant giving them access, and the Feds still refused. This is a critical failure in the rule of law.
I’m not sure you all see how bad things are, how far past redemption you are. Maybe one can’t if it’s one’s own country? The article for yesterday’s post was not surprising to me at all. It just served to make me feel a bit more confident in my own analysis, which it largely mirrored. You’re at a point now where you’re either going to start anew and _remake_ yourselves, or you’ll just slip slowly into further totalitarianism. There is no going back to the way things were. (I feel that way too many politicians don’t see this, like Dem leadership for example, and it infuriates me.) To those outside the USA, it’s clear: you’re cooked. And it may have been inevitable to some extent, but that surely isn’t stopping Putin from laughing about it.
I don’t pray, but I do _hope_ that you guys are able to pick the right direction and…somehow…make it happen.
I wonder what all the 2nd Amendment fanatics think about protecting their guns to fight off government tyranny. Maybe they’ll come to realize that the tyranny is upon us and they are confused as to what to do. For those who had their G.I. Joe toys taken away as children, there’s always an ICE recruiter near you to welcome you to the new band of brothers: THUGS and Bovino … Perfect.
John Hawthorne: You may be correct in some of your statements, but if we DO recover from this nightmare, our nation and its governing philosophy will never be the same as before. The corporate/banking moguls will not give up their money/power addiction nearly as easily as the politicians they’ve purchased.