Thanks for this excellent piece. The government needs to understand that if there aren't legal remedies to government abuses, there will inevitably be extra-legal remedies performed by a populace determined to re-establish justice.
Ms. Bidwell, this post is substantially incorrect with regards to the Westfall Act, among other things. The law was passed in 1988 and extended immunity (via indemnification) only from certain enumerated torts to federal law enforcement acting within the scope of their duties. At the same time, it added an escape clause to the FTCA at 28 U.S.C. § 2679(b)(2)(A) for "civil action[s] against an employee of the Government ... brought for a violation of the Constitution of the United States."
See Vázquez, Carlos M., and Stephen I. Vladeck. "State Law, the Westfall Act, and the Nature of the Bivens Question." U. Pa. L. Rev. 161 (2012): 509.
"Though overlooked, that exception may allow state tort suits 'brought for' constitutional violations to proceed." Buchanan v. Barr, 71 F.4th 1003, 1016 (D.C. Cir. 2023).
A detailed and well-reasoned piece. It appears all those "don't tread on me" folks have been aiming their vitriol at the wrong people and party, when it's been more conservative judges and justices who've diluted or essentially removed their rights and remedies against the federal government.
Thanks for this excellent piece. The government needs to understand that if there aren't legal remedies to government abuses, there will inevitably be extra-legal remedies performed by a populace determined to re-establish justice.
off topic but i had no clue a B-25 crashed into the Empire State Building in 1945, i thought that was joke when i read it.
Ms. Bidwell, this post is substantially incorrect with regards to the Westfall Act, among other things. The law was passed in 1988 and extended immunity (via indemnification) only from certain enumerated torts to federal law enforcement acting within the scope of their duties. At the same time, it added an escape clause to the FTCA at 28 U.S.C. § 2679(b)(2)(A) for "civil action[s] against an employee of the Government ... brought for a violation of the Constitution of the United States."
See Vázquez, Carlos M., and Stephen I. Vladeck. "State Law, the Westfall Act, and the Nature of the Bivens Question." U. Pa. L. Rev. 161 (2012): 509.
"Though overlooked, that exception may allow state tort suits 'brought for' constitutional violations to proceed." Buchanan v. Barr, 71 F.4th 1003, 1016 (D.C. Cir. 2023).
A detailed and well-reasoned piece. It appears all those "don't tread on me" folks have been aiming their vitriol at the wrong people and party, when it's been more conservative judges and justices who've diluted or essentially removed their rights and remedies against the federal government.
Rogan's List has put together an action page with call scripts and email tools to push Congress and state legislators on Bivens reform and converse 1983 remedies here: https://susanrogan.substack.com/p/we-cant-hold-federal-agents-accountable