Editorial other views

The following editorial published in the Austin American-Statesman on Sept. 12:

Federal Judge Don Willett, a Trump appointee to the U.S. Fifth Circuit Court of Appeals, was outraged by his own court’s ruling.

“If you wear a federal badge, you can inflict excessive force on someone with little fear of liability,” Willett lamented in a March opinion as the appellate court, bound by prior rulings, blocked a lawsuit against a federal agent outside Houston who engaged in an appalling abuse of power.

“Middle-management circuit judges must salute smartly and follow precedent,” Willett added, even when that means “private citizens who are brutalized — even killed — by rogue federal officials” can find no relief in the courts.

We find that outcome as intolerable as Willett does. Texans, indeed all Americans, should expect the rule of law to apply to federal agents, too. The U.S. Supreme Court is expected to decide in the coming weeks whether to take up the Texas case of Byrd v. Lamb in its next term. We urge the justices to do so and set this matter right.

The case centers around a 2019 altercation between Kevin Byrd and Ray Lamb in a Conroe parking lot. Byrd was visiting the scene of a recent car crash involving his ex-girlfriend and Lamb’s son, trying to piece together what happened. Lamb, apparently incensed that Byrd was sniffing around, stepped in front of Byrd’s car to prevent him from leaving. Then, according to court documents, Lamb “pointed a gun at Byrd, tried to smash his driver’s side window with a gun, and threatened to ‘put a bullet through (his) f---- — skull’ and ‘blow (his) head off.’” Then Lamb pulled the trigger. Byrd believes he could have been killed, had the gun not jammed.

Unquestionably an assault like that would land anyone else in legal peril. But Lamb happened to be an agent with the Department of Homeland Security. Even though the altercation had nothing to do with Lamb’s duties as a federal officer, he flashed his badge at the police who came to the scene, and the officers detained Byrd instead. Fortunately for Byrd, the parking lot had a security camera that captured video of the entire encounter. Once police saw Byrd had done nothing wrong, he was released.

With the support of the nonprofit Institute for Justice, Byrd sued Lamb for using excessive force and unlawfully detaining him. But Lamb’s attorneys argued that as a federal agent, he had qualified immunity. In March, relying on Fifth Circuit precedents, the federal appellate court agreed — even as Willett acknowledged the injustice of “allowing federal officials to operate in something resembling a Constitution-free zone.”

In the landmark Bivens case 50 years ago, the Supreme Court ruled that people could sue federal agents who violated their Fourth Amendment right against unreasonable searches and seizures. Over the years, however, appellate courts have disagreed on what kinds of cases can seek that relief. Even the Supreme Court in recent years has been reluctant to expand the right to sue beyond the limited circumstances of the Bivens case, which involved federal narcotics agents searching a man’s home without a warrant and handcuffing him in front of his family.

The patchwork of rulings by different appellate courts means a lawsuit that would be allowed to proceed against a federal agent in Pennsylvania, Florida or Arizona would not clear legal hurdles in, say, Minnesota or Texas. That conflict alone begs for resolution at the Supreme Court.

More importantly, however, citizens deserve an avenue for redress when a federal agent’s conduct is blatantly and dangerously outside the law. Byrd’s case does not involve second-guessing an officer’s split-second decision in the line of duty. It demands consequences for a rogue agent whose badge should not be a shield from accountability.

Byrd’s case may have a ring of familiarity for Austinites who remember the case of former Austin police detective Charles Kleinert. After fatally shooting an unarmed man named Larry Jackson in 2013, Kleinert sidestepped a manslaughter charge by virtue of belonging to a federal task force. While Kleinert’s case involved protection from criminal charges, and Byrd v. Lamb involves protection from lawsuits, both illustrate how court precedents allow reckless federal agents to act with impunity.

The Supreme Court could bring much-needed clarity to the civil side of the problem by taking up Byrd v. Lamb in its next term. Americans’ rights under the Constitution become meaningless if the courts fail to protect them.

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