Lawmakers Push to Make Some Federal Employees Vulnerable to Lawsuits

Some federal employees could soon be vulnerable to lawsuits for violating constitutional rights of Americans while conducting their jobs, with a bicameral group of Democratic lawmakers pushing legislation to take down existing protections for workers and agencies alike. 

The Constitutional Accountability Act (H.R. 6327) would enable individuals to sue both the federal government and federal law enforcement employees for constitutional violations. The measure, introduced by Sen. Sheldon Whitehouse, D-R.I., and Rep. David Cicilline, D-R.I., is aimed at creating new incentives for state, local and federal agencies to boost oversight of employee training, supervision and discipline to root out misconduct, particularly among law enforcement personnel. 

The legislation would give individuals a statutory right to bring cases against feds who violated their constitutional rights, rather than having to prove a “cause of action” before a court. The lawmakers noted courts have become “increasingly unlikely” to approve those efforts. 

It would also hold federal agencies liable for the actions of their employees, even if the employees were acting within the confines of their jobs. That provision would unwind a Supreme Court precedent dating back to 1983. 

“For too long these agencies and governments—who employ, train, and oversee their officers—have been immune from lawsuits even in cases of egregious constitutional violations by their employees,” Cicilline said. “Removing immunity for these types of violations will incentivize agencies to take a hard look at their policies and make the changes that Americans deserve, as well as promote a fairer system in our courtrooms.”

Whitehouse added it would lead to agency leadership to boost accountability measures. 

“It’s a time-tested and proven way to encourage responsible management,” the senator said. 

The lawmakers said existing statute and court precedents create “gaps” that allow agencies and employees to go unpunished and leave little recourse for citizens whose rights were violated. Federal agencies are less responsible for their officers’ conduct than big box stores are for their security guards, they said. 

The measure would also impact law enforcement at other levels of government, such as state sovereignty that shields state governments and their employees acting in official capacities from lawsuits. At the federal level, individuals can sue officials for violating their rights after the Supreme Court case Bivens v. Six Unknown Named Agents. The precedent created a high threshold, however, and courts frequently deny plaintiffs the ability to sue.