From Texas Public Radio:
How accountable is a federal law enforcement agent when they break the law? If someone wears a federal badge — even when off duty — they can inflict excessive force on a person without fear of liability.
Now, the U.S. Supreme Court is being asked to fix what many call a hole in the constitution. This comes after a Homeland Security agent attacked a Texas man in 2019.
Surveillance footage from a Conroe, Texas parking lot captured the conflict. It’s the early morning hours and Kevin Byrd is sitting in his car when Ray Lamb charges at him brandishing a handgun.
“Agent Lamb came around the vehicle,” said Byrd. “The first thing he said to me was “roll down the window or I’m going to put a bullet in your F**ing skull.”
Byrd said he didn’t know his attacker and Lamb did not identify himself as a federal agent with the Department of Homeland Security.
Hours earlier, Byrd’s ex-girlfriend and mother of his child was a passenger in a car that slammed into a Greyhound bus.
The driver was Agent Lamb’s son.
At the time of the incident, Byrd went to wait in the parking lot of a bar that Lamb’s son was thrown out of earlier in the night. He wanted to see the surveillance video to find out what had happened to his ex-girlfriend.
It was clear that Agent Lamb didn’t like that.
“He actually took his pistol and smashed it into the side of the window,” said Byrd. “And when it did, it ejected a shell and it came back. So, it didn’t rack all the way.”
Byrd then called 911 asking the police for help.
“They said somebody else had called it in and there were units en route. About that time, he put his finger on the trigger and tried to pull it. It didn’t go off,” Byrd said. “So he ejected the shell and cleared the jam and put his finger back on the trigger. And at that point in time is when Conroe PD came into the parking lot.”
On the video, the police units arrive and can be seen ignoring the man with the handgun and heading straight to Byrd to cuff him. Later while being questioned, Byrd learned the identity of his attacker and that Agent Lamb told police that Byrd was the aggressor. But Byrd had proof that Agent Lamb was lying.
“I said, ‘get the camera footage to back up what I say,’” Byrd said. “Forty-five minutes approximately went by, the officer came back to me and he said, ‘Mr. Byrd, the video footage corroborated your story.’”
It was then that Agent Lamb was arrested and charged with aggravated assault with a deadly weapon. But later, that charge would be dropped. Despite the fact that the attack on Byrd was captured on video, a grand jury declined to indict Lamb. Byrd said this is another example of how rogue law enforcement officers aren’t held accountable in the criminal courts.
“And the DA is the one who told me you need to go after him civilly,” Byrd said. “That is what the district attorney told me while sitting in his office.”
Turns out that is virtually impossible because in civil court, law enforcement officers enjoy qualified immunity. It shields government officials from being personally liable for constitution violations — like the right to be free of excessive police force.
“So that’s one of the real problems that we have with the whole idea of qualified immunity. It has turned into an almost absolute immunity,” said Professor Gerald Reamey from St. Mary’s University School of Law. “The officer gets the benefit of the doubt. And that happens time and time again.”
Fifty years ago, the U.S. Supreme Court’s decision known as Bivens — from the case Bivens vs. Six Unknown Named Agents — opened the courthouse door to allowing individuals to sue government agents who break the law. But since then, Bivens has been redefined more narrowly.
One of the criticisms is that Bivens has not been extended to cover a lot of acts that many believe should make police officers and federal agents liable for their conduct. Courts have been very quick to find that the officer’s actions when they’re accused of misconduct were reasonable under the circumstances. And that has caused an awful lot of criticism, especially in this time of police reform.
Before the 5th U.S. Circuit Court of Appeals, attorney Drew Willey — representing Ray Lamb — argued that Bivens didn’t apply in this case and that qualified immunity protected Lamb.
“Ultimately it comes down to a threshold issue for qualified immunity,” Willey said. “Should this claim even be allowed to be brought.”
Also in arguments, Willey presented a different framing of the conflict — saying it was his client, Agent Lamb, that was harmed.
“He wasn’t the one arrested. My client was the one who was arrested and charged with something that then got dismissed,” Willey said. “So my client’s the one who had the harm.”
One of the judges found that difficult to believe.
“Really? Even though it was your client who threatened him with the gun and continued to yell to roll down his window?” asked Judge Priscilla Owen. “And he said he would blow his head off. It’s your client who was harmed in this, really?”
Willey also argued that a ruling for Byrd would hurt law enforcement.
“If an excessive force claim were allowed to continue in this case — based off the facts — then officers all over the country will be liable for merely brandishing their weapon during a stop,” Willey said. “That’s a dangerous path to take.”
The court also found that logic lacking and pointed out that this was not a routine traffic stop. It was a personal matter.
Nevertheless the 5th Circuit Court of Appeals threw out Byrd’s case. Bound by prior rulings, the court unanimously ruled that because Lamb was a federal agent, Byrd could not sue him at all.
Federal Judge Don Willett, a Trump appointee to the 5th U.S. Circuit Court of Appeals, was outraged by his own court’s ruling writing that, “If you wear a federal badge, you can inflict excessive force on someone with little fear of liability.”
Willett blasted the U.S. Supreme Court for “allowing federal officials to operate in something resembling a Constitution-free zone.”
But that’s not the end of it. With support from the non-profit Institute for Justice, Byrd is now asking the Supreme Court to review his case.
If the high court agrees and decides in favor of Byrd, that would reopen the courthouse door to ensure that lower courts can hold federal law enforcement officers accountable when they violate citizens’ rights.