Qualified immunity, which we discussed in part one, is typically an issue only with state and local police. But that’s only because the protections afforded to federal police make them nearly untouchable. Those federal protections are getting more attention as state and federal police increasingly work together on issues like drug enforcement, gangs, and immigration. It used to be that federal agents were few, making their immunities less important. But as federal law enforcement has grown, the importance of these exceptional protections has grown along with it.
The history of federal law enforcement tells the story. While the KKK Act (1871) provided a way to sue state and local officials for constitutional violations, it did not provide a way to sue federal officials. There are good reasons for the omission. First, there just weren’t very many federal law enforcement officers in the nineteenth century. The precursor to the FBI wouldn’t exist until the early twentieth century, and agencies like the DEA, ATF, and others would come much later. Second, the KKK Act was passed in response to rampant constitutional violations by state officials. To the extent that the federal government was involved at all, it was trying to protect freedmen from those officials. Creating a way for people to sue federal officials could hamper the goals of Reconstruction by giving the Klan and Confederate holdouts the ability to sue Black elected officials and others sympathetic to freed slaves.
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But starting in the Progressive Era, the number of federal law enforcement agencies and personnel began to grow. Today there are around 90 federal law enforcement agencies, depending on how you define “law enforcement.” As of 2023, those agencies employed about 137,000 full-time officers.
Despite this massive increase in armed federal law enforcement officers, Congress has yet to create a way to sue federal law enforcement officers for abuse. So, in 1971, after a series of botched no-knock drug raids by federal narcotics officers, the Supreme Court created one. The incident that precipitated Bivens v. Six Unknown Federal Narcotics Agents took place in 1965, when six federal narcotics agents broke into the Brooklyn home of Webster Bivens and arrested him without a warrant. When the criminal charges against him were dropped, Bivens sued.
The U.S. Supreme Court ruled 6-3 that if there is no other remedy for a constitutional violation, the court would infer a right to sue for monetary damages in federal court. Writing for the majority, Justice William Brennan articulated a principle that would seem to be obvious, but that the court has since all but ignored: There are no rights without remedies—if there’s no way to hold the government accountable for violating our rights, our rights may as well not exist.
And yet the Court soon began chipping away at Bivens. It first refused to apply Bivens to any claim not involving the Fourth Amendment. It then refused to apply the case outside the narrow context of warrantless home invasions. It then began to narrow even those parameters. Of the roughly 30 cases it has heard that have invoked Bivens, the Court has allowed the plaintiff’s lawsuit to go forward in just three, including Bivens itself. The most recent was in 1980. It’s gotten bad enough that civil rights attorneys sometimes would joke that the only way to win a Bivens claim was to have a client named “Bivens.”
In 2022, the court effectively put Bivens out of its misery. In Egbert v. Boule, Robert Boule, a hotel owner, alleged that a Customs and Border Patrol officer illegally entered his property without a warrant to apprehend a guest whom the officer believed (falsely) was in the country illegally. When Boule asked the officer to leave, the officer slammed Boule into a car and threw him to the ground. When Boule filed a complaint against the officer, the officer retaliated by filing a false report about Boule to the IRS and other regulatory agencies. Boule incurred thousands of dollars in legal bills. An internal Border Patrol investigation found that the agent had withheld information from investigators, “demonstrated lack of integrity,” and recommended his termination. Boule filed a lawsuit under Bivens, claiming that the officer had violated his First and Fourth Amendment rights.
Boule lost at the Supreme Court. First, the court unanimously ruled that Boule could not bring a First Amendment claim under Bivens. The court had barred any claims outside of the Fourth Amendment a long time ago. But in a 6-3 vote, the court also threw out Boule’s Fourth Amendment claims. Writing for the majority, Justice Clarence Thomas again expressed the conservative justices’ contempt for Bivens, and wrote that if the court were to decide the landmark case today, it would rule the other way. It is Congress’s job to create a remedy for constitutional violations, Thomas wrote, not the Court’s. In a concurring opinion, Justice Neal Gorsuch wrote that the majority opinion had basically killed Bivens. He wrote that the court should have overruled the 1971 ruling once and for all to prevent future plaintiffs from wasting their time.
The Court’s ruling in Egbert effectively made federal police officers absolutely immune from lawsuits, even for brazen and egregious abuse. That quickly became apparent in the case of Hamdi Mohamud, a Minnesota woman who was arrested and jailed for well over a year because of manufactured evidence. In 2010, a St. Paul, Minnesota, police officer named Heather Weyker began investigating an alleged sex trafficking ring involving Somali immigrants. Weyker notified federal law enforcement, who eventually deputized her as part of a federal anti-trafficking task force. Her work led to the arrest of more than 30 people.
But the government’s case against the people Weyker targeted fell apart. In the end, none of them were convicted. A federal judge found that Weyker “likely exaggerated or fabricated important aspects” of the charges, and had been caught “lying to the grand jury,” and “lying during a detention hearing.”
Weyker’s behavior toward Mohamud was particularly vicious. Mohamud was incarcerated for 17 months before the charges against her were dismissed. But she would never see justice. The courts first ruled that because Weyker had been deputized by the federal task force for the purposes of the sex trafficking investigation, she enjoyed the protections of federal law enforcement. So Mohamud couldn’t sue Weyker under the KKK Act. She’d have to sue under Bivens.
When the Supreme Court issued its ruling in Egbert, Mohamud’s case hit a brick wall. The Federal Court of Appeals for the Eighth Circuit threw out her lawsuit in 2025, citing Egbert. And in March 2026, the U.S. Supreme Court refused to hear her appeal. More than two dozen people hurt by Weyker’s misconduct attempted to sue for damages. And now, because of Egbert, none of those cases will ever get to a jury.
It’s hard to ignore the Supreme Court’s contradictory trajectories on qualified immunity and Bivens. In Bivens cases, the court has rejected its own 1971 ruling that created a way to sue federal law enforcement for constitutional violations. The conservative justices argued that creating that sort of cause of action is solely within the purview of Congress; the court had overstepped its authority in Bivens.
But with respect to the qualified immunity cases, Congress did pass a law creating a clear cause of action to sue state and local law enforcement in federal court for constitutional violations. The Court’s response, as we have seen, was to invent an exception to that law that doesn’t exist in the Constitution, and that explicitly contradicts Congress’s intent when it passed the law. In these cases, it seems unbothered about overstepping its authority.
There is no consistent legal principle in these two trajectories—other than excusing police from accountability for violating constitutional rights.
The only real remaining way to hold federal law enforcement accountable is through a complicated law called the Federal Tort Claims Act, or FTCA. Congress passed the law in 1946 to allow people to sue the federal government itself for personal injuries or property damage caused by federal employees, as opposed to suing individuals. But the FTCA is notoriously difficult to navigate. It includes exceptions for actions that are considered “discretionary functions”—acts that may cause some harm but aren’t unconstitutional. At the same time, it includes exceptions for “intentional torts,” or actions so egregious that they couldn’t possibly be related to a government employee’s job. That leaves a fairly narrow set of actions that cause harm.
In 1974, Congress amended FTCA after a series of botched raids by federal narcotics officers. The amendment allows for claims under the FTCA against federal law enforcement officers accused of “assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution.” But like Bivens, the federal courts have gradually limited those exceptions ever since.
The FTCA also doesn’t permit punitive damages, and it requires plaintiffs to exhaust all other possible claims in state and federal court before bringing a claim under the law. All of this makes it prohibitively expensive to sue under the FTCA, which means outside of nonprofit civil rights organizations, few attorneys are willing to take such cases. The odds are long, and the bar on punitive damages means that plaintiffs’ attorneys can’t count on the rare win and large award to bankroll the vast majority of times they lose.
The Supreme Court’s confusing, often contradictory jurisprudence on civil liability for police officers only gets more frustrating when considered with the restrictions the court has imposed on other methods of remedying constitutional violations by police. In a shadow docket ruling last year, for example, the court lifted a temporary restraining order that barred federal immigration officers from using race, language, and location to profile possible undocumented immigrants. In a concurring opinion, Justice Brett Kavanaugh wrote that any U.S. citizens or legal residents who suffered injury due to racially motivated profiling could always sue the offending officers (Noem v. Vasquez Perdomo, 2025). The court has also cited lawsuits as a preferable way of enforcing constitutional rights over the Exclusionary Rule. It’s hard to take those opinions seriously when the court is simultaneously making it more and more difficult for such lawsuits to prevail.
For someone like Ann McLeod—who, as we saw, was gravely injured in a botched federal raid that had been looking for a low-level drug offender—the first hurdle to recovering damages is often finding an attorney willing to take their case. Civil rights lawsuits are expensive, time-consuming, and risky. Few attorneys have the desire or expertise to navigate the legal morass of immunities and restrictions, particularly in more rural and conservative areas. Any mistake could result in dismissal, along with a possible bar on bringing similar claims in the future.
When Ann McLeod tried to sue the state and local police officers who raided her under state law, for example, the officers argued in court briefs that because the raid happened under the auspices of a federal task force, they were protected by federal immunity. But when she tried to sue under the FTCA by pointing out that the task force had violated numerous federal policies on the morning she was shot, the officers claimed that because they were apprehending someone for violating state drug laws, they were enforcing state law, and therefore couldn't be sued under a federal statute. Officers seemingly acquired, and shed, whatever status they needed to escape being held responsible in the argument at hand.
McLeod’s lawsuit should have been as open-and-shut as such a case should be. She had done nothing wrong. The task force officers had used overwhelming force to apprehend a low-level offender, failed to verify their suspect’s address, failed to check that their suspect wasn’t already in custody, carried out a volatile operation without ever training together, didn’t surveil the home before the raid, illegally forced their way into the home, and unjustifiably opened fire on an innocent woman. There was also considerable local media coverage of the incident, which generated outrage from the public and from politicians in the area, from across the political spectrum. Unfortunately, the fact that McLeod is a white woman with no prior criminal record probably helped generate more public sympathy.
Yet even McLeod’s case still bounced around the federal courts for years. It wasn't until April 2025—six years later—that the federal government settled with McLeod for $1.3 million. That’s enough for her to pay her medical bills, compensate her for her injuries, and pay for her treatment going forward. But such outcomes are rare, and generally they come about only for sympathetic plaintiffs who generate media coverage and public anger.
***
The context for the Supreme Court’s recent immunity decisions seems particularly relevant and poignant now. The Egbert ruling effectively made federal police officers absolutely immune from lawsuits that stemmed from an abusive Border Patrol officer who retaliated against a U.S. citizen for defending an immigrant falsely accused of being in the country illegally. The sex trafficking case decided in light of Egbert also involved false accusations against immigrants—Somali immigrants in particular.
Today, Donald Trump has fully weaponized the Justice Department against his enemies, including enlisting police agencies like the FBI. His administration has set poorly trained federal immigration agents loose in cities around the country, often with dangerous rhetoric that the people they’re targeting “poison the blood of the country,” and that those who protest mass deportations are “domestic terrorists.” Trump officials have celebrated brutality from these agents, repeatedly told them they are “immune” from consequences for their actions, and directed them to “force confrontations” with immigrants and protesters. As of January 2026, the administration had more than doubled the size of Immigration and Customs Enforcement (ICE) from 10,000 agents to 22,000, and diverted significant portions of other federal police agencies to immigration enforcement. The 900 percent budget increase for immigration enforcement passed by Congress in 2025 will add thousands more. Once a numerically small exception, federal agents’ immunities are becoming more and more important in how policing is done.
The good news is that it would be relatively easy to make police officers more accountable. Congress could pass a law tomorrow creating a cause of action to sue federal law enforcement officers for violations of constitutional rights. They could also pass a bill stripping state and local police of qualified immunity, which would allow for damages any time a police officer violates someone’s rights, without the onerous “well-established law” requirement.
Individual states could also create state causes of action against state and local law enforcement officers who violate the U.S. Constitution or their own state constitutions. Many already do. These laws are likely to be tested in court, but some constitutional scholars think they have a good chance of surviving.
In the past, it’s been difficult—but not impossible—for state prosecutors to hold federal law enforcement officers criminally accountable when they violate state laws. Such charges tend to be removed to federal court and opposed by the federal Department of Justice, and few district attorneys have had the will to take on the federal government. But that’s changing as the Trump administration continues to politicize the DOJ. We’re likely to see more such fights play out in the coming years as prosecutors in places like Minneapolis, St. Paul, and other cities try to bring criminal charges against federal officers for violence against immigrants and protesters.
It will take some political will for state legislatures to pass laws holding federal police accountable. The beneficiaries of such laws—the marginalized people most likely to be abused by police—have little political clout. And those opposing more accountability—police unions and law-and-order groups—have considerably more power.
But a country where police are increasingly unaccountable for their actions just isn’t tenable, particularly under an administration that celebrates police violence and the weaponization of the law against its enemies. Law enforcement officers are entrusted with the most profound powers imaginable in a free society: The power to arrest, detain, use physical force, and kill. There’s a good argument that because of those powers, they should be held to a higher standard than everyone else. There’s also an argument that they should be held to the same standard. What isn’t acceptable is that they be held to a lower one. Yet that’s precisely what the courts have done.
