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On June 10, the International Association of Chiefs of Police (IACP) issued a statement fervently oppos[ing] efforts to eliminate qualified immunity, the judicial doctrine that shields officers from liabilityeven if they have violated someones constitutional rightsunless a court has previously held that almost identical actions under almost identical circumstances were unconstitutional. The crux of the IACPs positionand the position of others who defend qualified immunity, including President Trump and Senator Tim Scott (R-SC)is that eliminating qualified immunity will have a profoundly chilling effect on police officers and limit their ability and willingness to respond to critical incidents without hesitation.

They are wrong. Eliminating qualified immunity should not affect police decision-making in this manner, and insisting that it will does a disservice to police professionalism.

The chilling argument overstates the impact that civil liability currently has on officer behavior, and would have were qualified immunity eliminated. Officers almost never contribute anything to settlements and judgments entered against theminstead, cities and counties pick up the tab as a matter of state law or local policy. There is no reason to believe these indemnification agreements would change were qualified immunity abolished.

More importantly, though, this misleading defense of qualified immunity relies on false claims about the types of conduct that qualified immunity protects. The IACP contends that qualified immunity is an essential part of policing because it allows police officers to respond to incidents without pause and make split-second decisions. And they claim that, without qualified immunity, officers would not be shielded from liability when taking good faith actions that turn out to be unconstitutional.

But the U.S. Supreme Courts decisions that define the constitutionality of stops, searches, arrests, and force already recognize that officers have to make split-second decisions, and already shield officers for reasonable actions, regardless of the officers subjective motivations. The constitutional standards developed by the Supreme Court that apply most directly to the policethe Fourth Amendment rules that govern stops, frisks, searches, arrests, and forcehave been very intentionally designed to avoid impair[ing] or hamper[ing] or imped[ing] effective law enforcement. Those rules are built around the notion that officers comply with the Constitution so long as they act reasonably.And the Court has adopted a deferential approach to determining whether officers acted reasonably, reminding lower courts to keep in mind that the operational environment in which officers act can be uncertain, stressful, dangerous[,] and difficult.

Contrary to the assertion that the protections of qualified immunity are all that allow officers to act decisively in quickly evolving scenarios, the Supreme Court has made clear that the reasonableness of officers actions must be judged in the context of the high-stress, high-speed circumstances in which they do their jobs. In fact, the Supreme Courts decision setting out the constitutional standards for uses of force explicitly instructs courts that the reasonableness of a particular use of force . . . must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.

The Supreme Courts constitutional standards make ample allowance for officers to make reasonable mistakes. When assessing the constitutionality of a stop, the Supreme Court has said that officers must act reasonably, but, [t]o be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them fair leeway for enforcing the law in the communitys protection.For that reason, officers can constitutionally stop or frisk someone when they have reasonable suspicion, and that that low bar is met so long as there is a moderate chance that the officers suspicion is correct. An officer can get a warrant or arrest someone when they have probable cause, which requires only a fair probability that they are right.

In short, officers have plenty of leeway to make mistakes without violating the Constitution. For example, courts have held that officers act constitutionally when:

Qualified immunity does not protect officers who make reasonable mistakes because reasonable mistakes do not violate the Fourth Amendment in the first place. Instead, qualified immunity shields government officials from liability when they have acted unreasonably (taking into account the deference that the Supreme Court has built into that term)so long as there isnt another court decision holding virtually identical facts to be unconstitutional.

Insisting that officers are so afraid of the consequences for their unreasonable actions that they will refuse to do their job demeans officers instead of treating them as the professionals that the IACP insists they are. Worse, it protects folks who shouldnt be officers in the first place.

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The Unnecessary Protection of Qualified Immunity - Justia Verdict

In the past weeks, probable cause has lost all meaning.

The Fourth Amendment of the Constitution states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

While the Constitution does protect against arbitrary arrest, it does not specifically define what is meant by "probable cause."

That definition comes from the Supreme Court ruling Brinegar v. United States which states, "Where the facts and circumstances within the officers' knowledge, and which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed."

Further, Black's Law Dictionary defines probable cause as "as the facts and evidence that lead many to believe that the accused committed a crime." It only provides grounds to allege the commission of a crime and thus the accused can be arrested.

In sum, probable cause to make an arrest exists when an officer has knowledge of such facts as would lead a person to believe that a person has committed, is committing, or about to commit a crime. Any person, regardless of socio-economic status, profession, political affiliation, race, gender, religion or other characteristic, can be arrested when law enforcement has reason to believe the person was involved in the commission of a crime.

A crime is any act or omission that violates a public law and can result in punishment. Depending on the act or omission, a person can be committing a federal, state or local crime.

Nowhere in the Constitution or any other document laying out the proceedings for arrest in the event of probable cause does it specify that law enforcement officers themselves are exempt from these proceedings.

Law enforcement in some states are beginning to understand this reality and are acting upon it. The officers involved in the killing of George Floyd in Minneapolis in May were all finally arrested earlier this month. The officer who shot and killed Rayshard Brooks has been charged with murder.

Officer Derek Chauvin had already restrained Floyd, and was therefore not acting within the constraints of the City of Minneapolis Police Department Manual section 5-311, which permits neck restraints only when the officer is trying to get control of an individual who is "actively resisting" or "exhibiting active aggression" towards the officer.

As such, kneeling on the neck of a person who is already restrained, in excess of eight minutes, is without debate a crime. Moreover, it was not only an unlawful act, but it was a particularly brutal act that saw Floyd begging and pleading for assistance until his final breath.

Officer Garret Rolfe, who has surrendered to face charges in Brooks' death, appears to have violated Atlanta Police Department policy regarding the use of deadly force.

His actions also fail to comport with the Supreme Court's findings in Tennessee v. Garner as to when an officer may appropriately use deadly force against a fleeing suspect.

A reasonable person reviewing these facts is left to believe that shooting a fleeing suspect in the back that presents no lethal threat to the officer or the public is not only an unreasonable use of force but, more importantly, a crime.

But it took days and weeks for charges to be brought and arrests to be made in the killings of both Floyd and Brooks. Police officers are treated differently by prosecutors as a result of their occupation.

Everyday citizens, on the other hand, are arrested and charged for crimes based on probable cause. Some of those arrested and charged are found innocent, charges are dropped and others are convicted. Some are killed before they can stand trial.

There should be no difference in the application of probable cause as a result of a persons' socio-economic status, profession, political affiliation, race, gender, religion or other characteristic. Equality and fairness in the criminal justice system cannot be achieved if laws are not applied equally to those charged with enforcing them.

Terrence Alladin is an assistant professor of criminal justice at Lebanon Valley College in Annville, Pa.

This story was originally published by the Pennsylvania Capital-Star. For more stories from the Pennsylvania Capital-Star, visit PennCapital-Star.com.

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Equal Protection Under The Law Means Treating Bad Cops Like Any Other Criminal | Opinion - Patch.com

On May 28, protestors in Minneapolis demonstrated late into the night against the killing of George Floyd and police brutality. The next day, on Twitter, Jason Paladino of the Project on Government Oversight noticed a Customs and Border Protection (CBP) drone was flying over the city. According to open-source data, as reported by Gizmodo, the drone took off from an Air Force base in Grand Forks, North Dakota, at around 10:10 a.m. At 11:47 a.m., the drone reached Minneapolis, where it entered a hexagon-shaped holding pattern at 20,000 feet over the city. About an hour and a half later, around 1:15 p.m., it began its return to Grand Forks.

It is not entirely clear what the dronesuspected to be a Predator Bwas doing over the city. After Motherboard initially broke the story, CBP said in a statement that the drone was preparing to provide live video to aid in situational awareness at the request of our federal law enforcement partners in Minneapolis. Once the drone arrived in Minneapolis, an agency that CPB declined to name determined that the aircraft was no longer needed for operational awareness and departed back to Grand Forks. According to subsequent reporting from the Minneapolis Star Tribune, both the FBI and the Minnesota National Guard denied requesting the drone.

The deployment of the drone raises a host of important legal and policy questions. In a letter to the Department of Homeland Security, Democratic members of the House of Representatives expressed grave concern over the drones use and demanded information regarding recent Homeland Security surveillance operations. And in another letter to leaders of CBP, the Drug Enforcement Agency, the FBI and the National Guard Bureau, Democratic lawmakers noted that there had been reports of Predator drone use in Detroit and San Antonio during recent protests, among other types of surveillance technologies. But a potentially important legal question remains unexamined: If the CBP commenced a surveillance operation, would that have violated the Fourth Amendment?

The answer to that question depends on a number of details about the purpose, duration and technological capabilities of the operation. The longer and more precise the surveillance, the more constitutionally suspect it would be. Nonetheless, assuming that the government were to deploy the drone over a multiple-day periodtwo weeks since George Floyd was killed, protests continue across the countryit is possible to draw some preliminary conclusions with respect to the Fourth Amendment.

Leaders of a Beautiful Struggle v. Baltimore Police Department

The most logical starting point for a Fourth Amendment analysis is the recent federal district court decision in Leaders of a Beautiful Struggle v. Baltimore Police Department. In that case, the court denied plaintiffs request for a preliminary injunction to prevent the Baltimore Police Department from implementing an aerial surveillance operation called the Aerial Investigation Research (AIR) pilot program. The American Civil Liberties Union (ACLU), which represents the plaintiffs, has appealed that decision to the U.S. Court of Appeals for the Fourth Circuitand the court has agreed to expedite the proceedings.

According to the district courts opinion, the AIR program consists of flying three aircraftoperated by a private contractorover Baltimore for a period of six months. Each plane flies approximately 12 hours a day, collectively covering about 90 percent of the [c]ity and capturing about 32 square miles of the city per image every second. The planes cannot provide real-time surveillance and they are incapable of operating at night or in bad weather. What they do provide are images in which 1 pixel represents a single person, meaning that an individuals characteristics are not observable in the images. Those images are then stored for up to 45 days and can be accessed only as part of a criminal investigation for certain crimes, according to an agreement between the police department and the private contractor that maintains the database.

The district court analyzed the Fourth Amendment claim in three parts and determined that the AIR program was not a Fourth Amendment search. First, the court looked to three older precedentsDow Chemical Co. v. United States (1986), California v. Ciraolo (1986) and Florida v. Riley (1989)in which the Supreme Court rejected Fourth Amendment challenges to aerial surveillance that the district court found to be far more intrusive than the AIR program. Second, the district court surveyed a number of appellate court decisions that upheld the warrantless use of to observe activities within a given radius and concluded that those cameras captured more private activities than the AIR program. (The court did not engage, however, with the reasoning in a recent district court decisionthat is currently before the First Circuitthat found that extended use of such cameras requires a warrant.)

Third, the district court applied the Supreme Courts recent decision in Carpenter v. United States (2018), which extended Fourth Amendment protection to seven days worth of cellphone location data. (The courts discussion of Carpenter is the most important part of its analysis since all the cases cited in the first two parts of the opinion were decided pre-Carpenter.) Plaintiffs core argument was that, like the cellphone location data in Carpenter, the images collected by the AIR program also allowed law enforcement to track a specific persons movements over multiple days.

But the court distinguished the AIR program from Carpenter. The district court determined that cellphone location information offers a far more intrusive, efficient, and reliable method of tracking a persons whereabouts than the AIR pilot program. In particular, the court noted that while a cellphone generally relays its location data several times a minute, the AIR programs inability to fly at night and in bad weather creates gaps in the data [that] will prohibit the tracking of individuals over the course of multiple days. The court also relied on the fact that the Carpenter court noted that it is remarkably easy for law enforcement to track a persons location with access to their cellphone data. By contrast, it was significant in the courts view that tracking using the AIR images requires time-intensive analysesabout 1 hour of labor to track two hours of a vehicles movements. And, because the AIR program cannot track people once they are inside their homes, the court found thatunlike cellphone datathe AIR program cannot expose the privacies of life.

Still, the district courts opinion will not be the last word on the issueCarpenters doctrinal implications are far from settled. On appeal, among other things, the ACLU argues that the district court incorrectly applied Carpenter. In its view, the bad weather and gaps do not defeat the Fourth Amendment claim. The ACLU notes that the Carpenter court upheld a Fourth Amendment claim even though there are gaps in cellphone location data such as when people turn off their cell phones, leave them at home, or travel out of their service providers coverage area. And the ACLU emphasized that [f]or most Baltimoreans, who return home at night and leave in the morning from the same place, any of the AIR programs gaps will hardly provide meaningful protection against day-after-day tracking. Accordingly, the ACLU contends that rather than analyzing the AIR program in discrete 12-hour intervals, the Fourth Amendment claim should be construed as the daily collection of Plaintiffs movements, down to the yard, for 180 days, retained for 45 days at a time. Lastly, the ACLU sharply contests the relevance of the district courts reliance on the fact that additional work is required to track a specific person or vehicles location.

Drone Surveillance and the Fourth Amendment

At the outset, whether the drone provides law enforcement with retrospective surveillance capabilitiesin addition to the real-time feed that the CBPs statement referencedwould be crucial to the Fourth Amendment analysis. This is important because the Carpenter court placed repeated emphasis on the retrospective quality of the data since it gives law enforcement access to a category of information otherwise unknowable. While it remains an open question to what extent courts will extend Carpenter to real-time surveillanceMassachusettss supreme court already has done so, albeit in a context with some meaningful distinctions from aerial surveillanceit is clear that there would be a stronger Fourth Amendment claim if the footage was retrospectively available to law enforcement than if it was provided only in real time. Still, to the extent that real-time surveillance allowed for the tracking of specific people over an extended period of time, it could trigger Carpenters protections for the record of [a persons] physical movements.

If the drone did possess retrospective capabilities, even under the approach taken by the Leaders of a Beautiful Struggle district court, the surveillance would likely constitute a Fourth Amendment search. There are at least two constitutionally significant differences between the flight of the Predator B above Minneapolis and the AIR program that point toward that conclusion.

First, while there is limited public information about the zoom capacity of the Predator Bs camera, it seems likely that it is more precise than the AIR programs 1 pixel per person. A video on the General Atomics website shows the drones capabilitiesand it is possible that at a lower altitude, the drone could produce an even clearer picture. (It is also known that CBP is seeking facial recognition-equipped drones.) And as the Project on Government Oversight has noted, manufacturers marketing drones far less sophisticated than the Predator B highlight their [drones] ability to pick individuals out of a public gathering. Second, it is well established that the Predator B has night-vision and infrared capabilities. According to a 2009 Popular Mechanics story, even in the dark, [t]he video image is so sharp that even from an altitude of more than 3 miles, [the operator] can make out that ... men are carrying large, heavy backpacks. This means thatcompared to the AIR programthere would be even fewer gaps in surveillance, thereby producing a comprehensive portrait of a persons whereabouts.

The next step in assessing the lawfulness of the search would be to determine whether or not it meets the Fourth Amendments reasonableness requirement. (A reasonable Fourth Amendment search would be lawful.) A courts reasonableness inquiry would be highly fact-specific and is difficult to predict. In Carpenter, the Supreme Court affirmed that warrantless searches are typically unreasonable where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing. And the ACLUs Fourth Circuit brief contends that warrantless, nonparticularized aerial surveillance resembles the form of search in a general warrant, which is forbidden under the Fourth Amendment. But the Carpenter court also left open the possibility that even warrantless surveillance might be permissible if law enforcement is confronted with an urgent situation.

***

The current protests were not the firstand certainly will not be the lastinstance in which the government employs a military-grade drone for domestic law enforcement purposes. According to Freedom of Information Act documents obtained by the Electronic Frontier Foundation, Predator drones were used in dozens of state and federal law enforcement operations between 2010 and 2012. And while advocates have long argued that drone surveillance violates the Fourth Amendment, they now have a new weapon of their own: the Supreme Courts decision in Carpenter. How far Carpenter will extend, though, remains to be seen.

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Did a Government Drone Flight Over a Protest Violate the Fourth Amendment? - Lawfare

By Lara Yeretsian

Law360 is providing free access to its coronavirus coverage to make sure all members of the legal community have accurate information in this time of uncertainty and change. Use the form below to sign up for any of our daily newsletters. Signing up for any of our section newsletters will opt you in to the daily Coronavirus briefing.

Law360 (June 8, 2020, 2:14 PM EDT) --

Contact tracing works by identifying where people who have tested positive for the virus have traveled and with whom they've interacted.

The intent of these programs, which have shown positive results in other countries, is to alter the trajectory of the pandemic. It's an unobjectionable undertaking, but it could end up becoming a criminal justice nightmare.

Contact tracing requires that the information of more than one person is collected. A subject who has opted to participate in the program allows his or her geolocation and proximity data to be tracked. That person's friends, colleagues and acquaintances may now show up on the government's radar screen, whether they've agreed to be tracked or not, and without any forewarning.

Without probable cause for a search warrant, law enforcement could, absent legal restrictions, use geolocation data to build a case for probable cause against a criminal suspect. Proximity data could provide police with new tools for tracking cohorts against whom there isn't reasonable suspicion, simply by using other parties' location information.

It's not unlike DNA that has been submitted to a genealogical site for purposes of uncovering one's ancestry. The person submitting a DNA sample does not agree to its use by law enforcement to track down and arrest relatives who may have committed unsolved crimes. The implications of extending the same legal sophistry to law enforcement's use of COVID-19 data to go after criminal suspects should be troubling to everybody who cares about our system of justice.

At the end of April, U.S. Sens. Roger Wicker, R-Miss., John Thune, R-S.D., Jerry Moran, R-Kan., and Marsha Blackburn, R-Tenn., introduced the COVID-19 Consumer Data Protection Act, whose intent is to "provide all Americans with more transparency, choice, and control over the collection and use of their personal health, geolocation, and proximity data."

The act would require covered companies to obtain express consent from individuals to collect, process or transfer their personal health, geolocation or proximity information for the purposes of tracking the spread of COVID-19. Companies would have to tell consumers how their data will be handled, to whom it will be transferred, and how long it will be retained. They would also be required to delete or deidentify all personally identifiable information when it is no longer being used for the COVID-19 public health emergency.

Covered companies those subject to Federal Trade Commission jurisdiction, as well as not-for-profit entities and common carriers would be obligated to disclose to consumers at the point of collection how their data will be handled, to whom it will be transferred, and for how long it will be retained.

They would be required to publish transparency reports every 30 days describing their data collection activities related to COVID-19 and to delete or deidentify all personally identifiable information when it is no longer being used for the COVID-19 public health emergency.

Companies would also be required to have an effective opt-out mechanism for individuals to revoke their consent for the collection, processing and transfer of personal information, and they would need to adhere to prescribed data minimization and data security requirements for all personally identifiable information they collected.

Information that is aggregated, deidentified or publicly available is not considered covered data under the proposed law. Significantly, the bill would provide no private right of action, authorizing state attorneys general to enforce its provisions.

The act defines "precise location data" and "proximity data" as a person's past or present physical location. There are important public safety benefits to tracking the location of individuals who have received a positive COVID-19 diagnosis, as well as the identity and location of others with whom they've come into contact.

It's critical to understand who has been exposed to a COVID-19 carrier so that those people can be notified and can take immediate precautionary steps to prevent further exposures.

At the same time, however, the specter of Big Brother arises when we talk about tracking people's exact whereabouts. Without clear legal boundaries, geolocation and proximity data could become weapons in law enforcement's arsenal, used to track down people suspected of crimes in direct contravention of more than two centuries of protections against unreasonable search and seizure. Once the data is collected, how do we ensure that it isn't used for a different purpose?

The text of the CCDPA doesn't answer the question. Section 3(a) provides as follows:

During the COVID19 public health emergency, it shall be unlawful for a covered entity to collect, process, or transfer the covered data of an individual for a purpose described in subsection (b) unless. ... (3) the covered entity publicly commits not to collect, process, or transfer such covered data for a purpose other than the purpose described in subsection (b) to which the individual consented unless (A) such collection, processing, or transfer is necessary to comply with the provisions of this Act or other applicable laws. (emphasis added)

Notwithstanding subsection (a), a covered entity may collect, process, or transfer the covered data of an individual or group of individuals for a purpose described in subsection (b) during the COVID19 public health emergency without obtaining the affirmative express consent of the individual if such collection, processing, or transfer is necessary to allow the covered entity to comply with a Federal, State, or local legal obligation.

Relying on attorneys general to monitor and assess penalties for alternative uses of the information especially to give a leg up to law enforcement in prosecuting suspected criminals is unrealistic.

Location data could give police another mechanism for pursuing suspects, despite laws against unreasonable search and seizure. Just as with other violations of Fourth Amendment rights, evidence gathered as a result of geolocation or proximity tracing must be thrown out of court as unlawfully obtained.

Unless a suspect's relationships and location are public knowledge or are obtained through a valid search warrant, evidence obtained as a direct result of contact tracing data must be deemed inadmissible.

When society stops protecting the rights of criminal suspects, it stops protecting all of our rights.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

For a reprint of this article, please contact reprints@law360.com.

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Contact Tracing Shouldn't Upend 4th Amendment Protections - Law360

Of the many ideas for police reform to gain traction following the murders of George Floyd and Breonna Taylor by law enforcement, ending the judge-made legal doctrine of qualified immunity stands out for its tri-partisan and popular appeal.

More than 1,400 current and former pro athletes and coaches, including NFL stars Odell Beckham Jr. and Tom Brady, posted an open letter to Congress in support of the idea. Sen. Mike BraunMichael BraunLawmakers see some common ground on police reform proposals Police reforms should include federal cops too Booker says GOP senator has told him qualified immunity is 'on the table' in Senate police reform bill MORE (R-Ind.) declared his interest in introducing legislation. And it is a centerpiece of the Justice in Policing Act, which is quickly making its way through the House and proposes eliminating qualified immunity for state and local law enforcement.

But few have noticed that the bill leaves in place an FBI-SWAT-team-sizedloophole that shields federal officers from judicial accountability.Now is the moment to hold all law enforcement officers accountable for violating the United States Constitution.

The current version of the Justice in Policing Act would largely end qualified immunity for state and local law enforcement by amending Section 1983. Enacted as part of the Civil Rights Act of 1871 in the aftermath of the Civil War, Section 1983 ensures that state and local officers can not violate individuals federal constitutional rights with impunity which law enforcement in the recently vanquished former confederacy stood ready and eager to do. It allows individuals to sue state and local officials to recover damages for constitutional violations, and has been the primary tool that victims of police brutality use to secure redress for constitutional injuries ever since. Although in practice qualified immunity has made it nearly impossible to hold state officers accountable for the deprivation of rights.

At the federal level, the situation is even worse, because there is no corresponding statutory cause of action for those who suffer constitutional injury at the hands of federal officers. In 1971, the Supreme Courts decision in Bivens v. Six Unknown Federal Narcotics Agents recognized limited circumstances in which the Constitution itself authorizes victims to recover damages in cases involving federal officers, potentially putting federal abuses to the same test as the one applied to state and local wrongs.

But the Court has consistently and significantly curtailed the availability of these so-called Bivens claims in recent years. In its February decision in Hernndez v. Mesa, the Court all but shut them down, express[ing] doubt about [its] authority to recognize causes of action not expressly created by Congress. As Justice Clarence ThomasClarence ThomasLawmakers see some common ground on police reform proposals Police reforms should include federal cops too Booker says GOP senator has told him qualified immunity is 'on the table' in Senate police reform bill MORE declared in his concurring opinion, the time has come to consider discarding the Bivens doctrine altogether.

The fact that section 1983 cannot be used for federal officer misconduct, coupled with a Court increasingly reticent to sustain one absent a statute that creates it, means that victims of constitutional violations by federal officers too often have limited recourse. ICE officers who conduct illegal searches and seizures in violation of the Fourth Amendment, federal law enforcement officers who give falsified evidence in violation of the Sixth Amendment, TSA officers who violate individuals First Amendment rights and prison officials who subject inmates to punitive strip searches in violation of the Fourth and Fifth Amendments have all been found to be immune from judicial accountability. It is not unreasonable to expect that the Supreme Court will soon eliminate the Bivens doctrine altogether, leaving victims of unlawful actions by federal officers with no recourse.

For those who suffer constitutional violations by those sworn to protect them, whether the offending officer is a county sheriff or DEA agent is irrelevant. The distinction shouldnt matter to the law either. And yet it does.

Take the protesters who gathered in Lafayette Square on June 1 to protest systemic racism and the police killings of George Floyd and Breonna Taylor. As shocking footage from the Washington Post shows, federal law enforcement officers violently and without provocation dispersed the otherwise peaceful crowd. Such victims of police violence deserve to have a legal remedy. Soon, because of judicial trends and inaction from Congress, they might not.

Congress must step in to fill this lawless void by codifying Bivens claims. Closing this loophole would not only provide victims with an avenue for relief, but also help to deter future abuses. The Supreme Court has recognized the importance of judicial accountability in preventing federal law enforcement misconduct, not just remedying it, observing that the function of a Bivens suit is in part to deter individual federal officers . . . from committing constitutional violations. Without a federal Bivens statute without a mechanism for judicial accountability Congress provides federal law enforcement with little incentive to abide by its laws.

The United States needs a modernized Civil Rights Act of 1871 for the year 2020. Just as Congress did in creating section 1983 to authorize suits against state and local officers who terrorized newly freed slaves and those who might come to their aid, it should guarantee a private right of action for recovery of damages for constitutional violations by federal officers, retroactively and for future abuses. Any efforts at police reform that stop short of applying the law equally, no matter the badge, will fall short.

Justin Vail is a policy advocate at Protect Democracy. Roy L. Austin, Jr. is a partner at Harris, Wiltshire & Grannis, LLP and a former federal prosecutor in Washington DC and Deputy Assistant Attorney General in the Civil Rights Division.

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Police reforms should include federal cops too | TheHill - The Hill