The aggressive enforcement techniques of ICE and Border Patrol Agents over the past year have raised a lot of questions about how to hold the individuals accountable for violations of citizen’s constitutional rights. The recent shootings in Minneapolis have raised citizen’s demands for accountability to a fever pitch. While it is clear that the individual agents may be held accountable under criminal law, individual accountability under civil is not available without legislation from Congress.
At first glance, accountability for unconstitutional actions by federal agents might seem straightforward. In practice, however, it exists within a narrow and evolving framework that the Supreme Court has progressively circumscribed. This article outlines this framework and the remaining remedies available for accountability: specifically, the limits of 42 U.S.C. § 1983, the shrinking scope of Bivens remedies, and the qualified avenues that remain under the Federal Tort Claims Act (FTCA).
Can You Sue Federal Officers Under 42 U.S.C. § 1983?
No.
Section 1983 creates a private civil cause of action for individuals whose constitutional rights are violated by state or local government officials acting under color of state law. By its expressed terms, it does not extend to federal officials acting under federal authority. Even when federal officers allegedly engage in unconstitutional conduct, their actions fall outside the reach of 42 U.S.C. § 1983.
The Scope of Immunity for Federal Officers
Broad proclamations from federal officials that these individuals have absolute immunity do not hold up to scrutiny. The U.S. Department of Justice could prosecute each individual under 18 U.S.C. § 242 which makes violating a citizen’s civil rights a crime. State and local prosecutors may pursue charges under their own criminal laws for conduct committed within their jurisdiction, subject to constitutional limits and doctrines grounded in the Supremacy Clause. Under long-standing precedent, a federal officer may be immune from state prosecution when the officer (1) acted within the scope of federal authority and (2) had an objectively reasonable belief that the conduct was necessary to carry out federal duties.[1] See e.g., In re Neagle, 135 U.S. 1 (1890); Mesa v. California, 489 U.S. 121 (1989).
The Erosion of Bivens: Understanding the Challenges in Suing Federal Agents Directly
In 1971, the Supreme Court recognized in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics an implied cause of action for damages directly under the Fourth Amendment, allowing individuals to sue federal agents personally for certain unconstitutional searches and seizures.[2] Over the ensuing decades, the Supreme Court has retreated from that approach and has repeatedly declined to extent Bivens into new settings, treating it as a “disfavored judicial activity.”
Today, the Court has effectively confined Bivens to three factual contexts: a Fourth Amendment claim for unreasonable search and seizure (Bivens); a Fifth Amendment equal protection-type claim for gender discrimination (Davis v. Passman (1979)), and an Eighth Amendment claim involving inadequate medical care for a federal prisoner (Carlson v. Green (1980)). In Ziglar v. Abbasi (2017), the Court emphasized that extending Bivens to any “new context” is now strongly disfavored and that the creation of damages remedies against federal officials is primarily a task for Congress, not the judiciary. Later decisions, including Hernandez v. Mesa (2020) and Egbert v. Boule (2022), reinforced this position by rejecting Bivens claims in cross-border shooting and border-enforcement retaliation contexts.
For victims alleging unconstitutional violations by federal agents outside the narrow trilogy of recognized scenarios, there is now very little practical path to hold federal officers personallyliable for damages. In light of the Supreme Court’s ongoing contraction of Bivens, it has become increasingly important to focus on the potential, albeit limited, remedies available against the United States under the FTCA.
The Federal Tort Claims Act: Holding the Federal Government Liable
Under civil law, the United State Government may be held to account for their actions under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq.
When a federal officer cannot be held personally liable for damages, the United States may still be subject to suit through the FTCA. Enacted in 1946, the FTCA provides a limited waiver of the federal government’s sovereign immunity, allowing suits for certain torts committed by federal employees acting within the scope of their employment. Under the statute, the United States can be held liable “in the same manner and to the same extent as a private individual under like circumstances,” with the governing standards supplied by the tort law of the state where the conduct occurred. See 28 U.S.C. §§ 1346(b)(1), 2674; Richards v. United States (1962).
While tort claims generally involve the “negligence” of a federal employee, Congress preserved a set of intentional torts involving federal “investigative or law enforcement officers” in 28 U.S.C. § 2680(h), including assault, battery, false arrest, false imprisonment, abuse of process, and malicious prosecution. ICE agents—who are empowered to detain, arrest, and investigate—fall within this category of federal law enforcement officers. The so-called “law enforcement proviso” removes sovereign immunity for these intentional torts when committed by federal law enforcement agents, allowing claimants to seek damages from the United States itself rather than from the individual officer personally.
Even with this proviso, other FTCA limitations apply, including (1) the discretionary function exception, which bars suits based on governmental actions involving judgment or choice grounded in policy considerations, and (2) the prohibition on punitive damages. FTCA cases are tried before a federal judge rather than to a jury, and the court applies federal procedural rules while using state tort principles to determine substantive liability.
If an ICE agent wrongfully detains a person and/or uses excessive force, that person—or, in fatal cases, their surviving family members—may have a potential cause of action against the United States for personal injury or wrongful death, subject to the FTCA’s strict substantive and procedural requirements.[3]
How to File a Claim Under the FTCA: Procedure and Deadlines
Before filing an FTCA lawsuit, a claimant must first present an administrative claim to the appropriate federal agency, typically using Standard Form 95 (SF-95).[4] The claim must describe the incident, identify the individuals involved, and demand a “sum certain” in damages, supported where possible by medical records, employment information, and witness statements.
The administrative claim must be filed within two years of the date the claim accrues, which is usually the date of the injury or wrongful act. Missing this deadline generally bars recovery and will often result in dismissal of any subsequent lawsuit. Once the claim is submitted, the agency has up to six months to investigate and respond, and it may approve the claim, deny it, or take no action. If the agency denies the claim in writing or fails to resolve it within six months, the claimant may file a civil action against the United States in federal court, but must do so within six months of the date of mailing of the written denial. See 28 U.S.C. §§ 2401(b), 2675(a).
Conclusion
Between the inapplicability of Section 1983 to federal officers, the Supreme Court’s sharp curtailment of Bivens remedies, and the FTCA’s procedural and substantive constraints, navigating accountability for alleged federal misconduct has become both technically demanding and time sensitive.
Given these complexities, individuals and families affected by the action of federal law enforcement officers should consult experienced counsel as early as possible to evaluate potential Bivens-type claims, preserve FTCA deadlines, and coordinate any parallel criminal or administrative inquiries. For more information about federal civil rights and tort claims, contact our office at (918) 742-2021 or complete our online form for a free consultation.
[1] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5283929
[2] https://supreme.justia.com/cases/federal/us/403/388/
[3] https://www.opm.gov/about-us/get-help/federal-tort-claims-act/#url=How-to-Submit
[4] https://www.gsa.gov/system/files/SF95-07a.pdf
