An unusual concurrence issued by U.S. Circuit Judge Don Willett on March 9 has thrust the U.S. Court of Appeals for the Fifth Circuit back into the controversy over granting immunity to law enforcement officials at both the state and federal levels.
In the case Byrd v. Lamb, arising from the U.S. District Court for the Southern District of Texas, Kevin Byrd sued Ray Lamb, an agent of the federal Department of Homeland Security, claiming Lamb used excessive force during an altercation. Byrd filed a so-called Bivens action, a reference to the 1971 Supreme Court ruling in Bivens v. Six Unknown-Named Agents of Federal Bureau of Narcotics that gave individuals the right to sue federal officials for alleged violations of the Fourth Amendment.
The Fifth Circuit panel of judges, featuring Carolyn King, Jennifer Elrod and Willett ruled against Byrd, citing the increasingly narrow interpretation of Bivens by both the U.S. Supreme Court and the Fifth Circuit. Recent Supreme Court precedents have “cautioned against extending Bivens to new contexts,” the panel stated, adding that the circumstances of Lamb’s case did not fit the original context of the Bivens decision.
In a separate concurrence, Willett agreed that Bivens relief had to be denied because of that interpretation, but he lamented that “today’s result is precedentially inescapable: Private citizens who are brutalized — even killed — by rogue federal officers can find little solace in Bivens.”
He added, “do victims of unconstitutional conduct have any judicial forum whatsoever? Are all courthouse doors — both state and federal — slammed shut? … Does such wholesale immunity induce impunity, giving the federal government a pass to commit one-off constitutional violations?”
Willett concluded, “A written constitution is mere meringue when rights can be violated with nonchalance.”
University of Texas School of Law professor Stephen Vladeck, who argued a 2020 Fifth Circuit Bivens case before the Supreme Court, wrote similarly, “A world in which no Bivens remedies are available against any officer … is one in which Bivens is doing very little work, indeed.”
Anya Bidwell, a UT Law grad and Institute for Justice lawyer who specializes in qualified immunity issues said, “Judge Willett becomes essentially the first conservative judge to ring the alarm about the current state of the Supreme Court and Fifth Circuit jurisprudence on Bivens. Conservative judges over the past 30 years have been extremely skeptical about Bivens. And here is Don Willett saying he adds his voice to the chorus of those who are calling for greater accountability when it comes to the feds.”
The federal-level Bivens debate is a close cousin to the growing controversy over qualified immunity for law enforcement officers at the state and local level, which has engulfed the Fifth Circuit as well. The death of George Floyd last year at the hands of police officers and other instances of minorities being killed by police have renewed criticism that the doctrine lets officers off the hook too easily.
In two recent appeals, the Supreme Court has batted down the Fifth Circuit for invoking qualified immunity to protect law enforcement officers in shocking circumstances from being sued.
In Taylor v. Riojas, the Supreme Court last November sided with Trent Taylor, a Texas prisoner who was confined in frigid cells filled with feces and raw sewage. Fifth Circuit Judge Jerry Smith said Taylor was in those conditions for “only six days,” so the correctional officers were given qualified immunity. The Supreme Court said, “Confronted with the particularly egregious facts of this case, any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution.”
In February of this year, the Supreme Court cited the Taylor case in remanding another qualified immunity case, McCoy v. Alamu, in which Prince McCoy, another Texas prisoner, was sprayed with chemicals for no reason by a prison guard. Judge Smith again found that the guard’s wrongdoing was not clearly established as a constitutional violation.
The Supreme Court will soon consider one of the Fifth Circuit’s most recent Bivens decisions as well. The Institute for Justice, a libertarian public interest organization that has taken the Fifth Circuit to task on qualified immunity issues, filed a petition in January in Oliva v. Nivar, a precursor to Byrd v. Lamb. Jose Oliva, a veteran from El Paso, tried to sue police in the federal Veterans Affairs hospital in El Paso after he was wrestled to the ground, injured and arrested as he entered the hospital.
As with the Byrd case, the Fifth Circuit ruled that Bivens did not apply because the circumstances of the altercation did not fit Bivens parameters.
“Federal officials are not above the Constitution,” said Bidwell, the Institute for Justice lawyer. If the Fifth Circuit ruling in the Oliva case stands, she said the Fifth Circuit states of Texas, Louisiana and Mississippi will be “constitution-free zones, as far as federal police are concerned. And there are more than 17,000 federal police who work within the jurisdiction of the Fifth Circuit.”
Bidwell added that Texas “is obviously disproportionate when it comes to federal law enforcement, because it’s a border state. So it really is important for the nation, just given how big Texas is. But it’s also important for Texas, given how many law enforcement, federal police work there.”
The American Civil Liberties Union filed an amicus brief on behalf of Oliva, asserting that “the Fifth Circuit’s decision in this case undermines the enforcement of the fundamental rights embodied in the Fourth Amendment by effectively abolishing citizens’ ability to bring damages actions against federal officers who violate those rights.”