The Supreme Court let stand two appellate court opinions that in effect give federal agents and local police deputized as federal agents absolute immunity from prosecution.

The High Court’s refusal to hear these two cases follows on the heels of its decision in Egbert v. Boule that expanded immunity and makes it virtually impossible for people to sue Border Patrol agents for using excessive force.

In Mohamud v. Weyker, the Eighth U.S. Circuit Court of Appeals granted immunity to a Minneapolis police officer deputized as a federal agent. According to the lawsuit, Heather Weyker was part of a federal task force when she fabricated a sex ring and told outright lies leading to the arrest of Hamdi Mohamud. Mohamud was never convicted of any crime.

The Eighth Circuit held that Mohamud did not have a cause of action against Weyker under the Constitution because the facts of Mohamud’s case do not “exactly mirror” those of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.

In Bivens (1971) the Court held that individuals have the right to sue federal officers for violations of the Fourth Amendment. But subsequent cases have made it virtually impossible to initiate a Bivens case. The fact that no case will “exactly mirror” another case makes it virtually impossible to sue a federal agent under the Bivens rule.

In Byrd v. Lambthe Fifth Circuit rendered a similar opinion granting Homeland Security agent Ray Lamb immunity despite allegations of attempted murder. According to court filings, Lamb tried to kill Byrd in order to prevent him from asking questions about the involvement of the agent’s son in a drunken car crash the night before. A video appears to show Lamb’s gun jamming when he pulls the trigger. Again, the federal court held that Byrd had no grounds to sue because the case is “meaningfully different” than Bivens.

“Today, on the 51st anniversary of Bivens, the Supreme Court overturned Bivens,” Anya Bidwell, an attorney at the Institute for Justice said. “They are not explicitly saying it, but they are effectively doing it.”

Bidwell went on to say, “Today’s rulings are basically saying that you can never sue federal officials, period.”

As Reason put it, with these circuit court opinions upheld, “A federal badge will now serve as an impenetrable shield against civil liability for violating the same laws agents are charged with upholding.”

Qualified immunity enforced on all of the states through the incorporation doctrine has made it nearly impossible to sue state and local police officers for violations of rights. With these recent SCOTUS decisions (or non-decisions) the Court has now created nearly impenetrable absolute immunity for federal agents. It’s probably only a matter of time before we see similar immunity afforded state and local cops.

Mike Maharrey