Intern Katie Farr contributed to this blog post.
Late last year, the Fourth Circuit Court of Appeals dismissed Dustin Dyer’s lawsuit against Transportation Security Administration (TSA) officers who ordered him to stop recording their pat-down search of his husband. The officers also ordered him to delete what he had already recorded. But the court, using a flawed legal doctrine that limits civil rights lawsuits, ruled that Dyer could not sue the officers for money damages even if they violated his First Amendment right to record on-duty government officials.
But there is no right without a remedy. Indeed, the Supreme Court once recognized that suing federal officials for money damages is “necessary relief” when “federally protected rights have been invaded.” In 1971, the high court in Bivens v. Six Agents approved a damages lawsuit against federal anti-drug officers who unlawfully raided a home. But since the 1980s, the Court has chipped away at the Bivens right to seek damages from federal officials. The Court recently blocked a lawsuit against a Customs and Border Patrol officer for violating First and Fourth Amendment rights.
We need money damages under Bivens to protect our civil rights—including the right to record and other digital rights—from the federal government. While a federal civil rights law protects our right to sue state government officials for money damages, no such statute exists for suing federal government officials. And the Supreme Court set, and the Fourth Circuit applied, a very high bar for suing under Bivens. You must show there are “no alternative remedies” and “no special factors counseling hesitation.” That is as vague and broad as it sounds, and the Fourth Circuit said this high bar “all but closed the door” on Bivens.
For example, the Fourth Circuit rejected Dyer’s lawsuit because the TSA’s parent agency, the Department of Homeland Security (DHS), has a complaint system. Even though it is mostly for people on the no-fly list, and may not “squarely address” the TSA officers’ interference with Dyer’s recording, the court said that is an “alternative remedy” to a lawsuit for money damages. Moreover, the court said the TSA’s “role in national security” was a “special factor” against Dyer’s lawsuit. The court worried that TSA officers who are liable for violating people’s rights might “hesitate in making split-second decisions about suspicious passengers.”
This might sound familiar: courts have invented legal doctrines that protect government officials from the people whose rights they violate, such as officers who shoot and kill people. Courts are chipping away at Bivens so people cannot obtain damages from federal officials that violate the Constitution. They are also expanding both qualified immunity, which often protects both state and federal officials from paying damages, as well as flawed doctrine from Monell v. New York that protects cities and counties from paying damages.
But the judiciary’s job is to let us have our day in court and hold the government accountable. That means we need new laws abolishing qualified immunity and Monell. And for people like Mr. Dyer, it means new laws expanding Bivens, not limiting it.