Legal Sidebari
Regulating Federal Law Enforcement:
Considerations for Congress
June 24, 2020
In the wake of unrest arising from the May 2020 death of George Floyd, broader questions have arisen
regarding Congress’s authority to regulate law enforcement officers. While federalism principles limit the
extent to which Congress may pass laws directly affecting state and local police officers, Congress has
broader authority to regulate federal law enforcement officers and agencies such as the Federal Bureau of
Investigation (FBI), the Drug Enforcement Administration (DEA), or the Customs and Border Protection
(CBP). This Sidebar explores the existing criminal, administrative, and civil remedies that impose liability
on federal law enforcement officials for claims of excessive use of force, including those brought under
the Bivens doctrine and the Federal Tort Claims Act (FTCA). It then concludes by discussing
considerations for Congress regarding further regulation of federal law enforcement officials.
Current Law Regulating Federal Law Enforcement
Existing federal laws provide a number of criminal, administrative, and civil remedies for holding law
enforcement officers and agencies accountable for misconduct.
Federal Criminal Law
Perhaps the most stringent way to regulate the behavior of federal law enforcement officials is through
criminal law. The chief criminal law regulating not only federal law enforcement officials, but state and
locals ones as wel , is 18 U.S.C. § 242 (Section 242)—described more in depth in this Sidebar. In relevant
part, that statute makes it a crime for a person “acting under the color of law” to deprive someone of their
constitutional y protected rights. “Under the color of law” means that an individual is acting “using power
given to him or her by a governmental agency,” and it is irrelevant whether the actor is “exceeding his or
her rightful power.” Moreover, the Supreme Court has explained that to successful y prosecute an al eged
offender—such as a police officer—under Section 242, the Department of Justice (DOJ) must show that
the defendant had “a specific intent to deprive a person of a federal right made definite by decision or
other rule of law.” According to the DOJ, which enforces Section 242, examples of misconduct
prosecuted under the statute include “excessive force, sexual assault, intentional false arrests, theft, or the
intentional fabrication of evidence resulting in a loss of liberty to another.”
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Use of Section 242 against federal law enforcement officials is not the primary use of the statute.
According to one study looking at Section 242 cases from last decade, 12.4% of al prosecutions studied
targeted federal defendants. Section 242 covers federal officials, as wel , and has been used in recent
years to investigate border patrol agents, United States Park Police, and FBI agents for instance.
Violations of Section 242 are punishable by fine and/or up to a year in prison or, if certain aggravating
factors are present, up to life in prison or death.
Administrative Remedies
Beyond criminal law, other federal statutes and guidelines provide more limited methods of remedying
misconduct by federal law enforcement within the confines of a given agency. Internal policies may
address how federal law enforcement agents conduct themselves during investigations, including
provisions on when the use of force is appropriate. For example, the Attorney General’s Guidelines for
Domestic FBI Operations instructs that “acts of violence” are not authorized unless the FBI agent is
engaging in the lawful use of force, such as in incidents of self-defense or “otherwise in the lawful
discharge of their duties.” Federal law enforcement agencies, similar to other federal agencies, have
various legal avenues to address employees whose conduct departs from established norms, such as
through censures, reprimands, suspensions, demotions, and removals.
Beyond the ordinary employee discipline process, federal law enforcement agencies may have other
review processes to examine civil rights violations by federal agents. For example, Section 1001 of the
USA PATRIOT Act directs the Office of the Inspector General (OIG) of the DOJ to “review information
and receive complaints al eging abuses of civil rights and civil liberties” by DOJ employees, including
employees of the FBI, DEA, Federal Bureau of Prisons (BOP), the Bureau of Alcohol, Tobacco, Firearms,
and Explosives (ATF), and the U.S. Marshals Service (USMS). The DOJ has relied on this congressional
directive to investigate al egations of civil rights violations against “ethnic and religious groups who
would be vulnerable to abuse due to a possible backlash from the terrorist attacks of September 11, 2001.”
Under Section 1001, for example, the OIG has investigated al egations that BOP employees tortured a
prisoner because of his Muslim religion. Pursuant to statutes like Section 1001 and more general
authorities, Inspectors General have sometimes investigated al egations of il icit use of force by federal
law enforcement agents and reported findings to the DOJ Civil Rights Division to review for possible
prosecution or other administrative misconduct.
Civil Remedies Under Bivens and the FTCA
Beyond criminal and administrative remedies to address il icit use of force, some limited civil remedies
also exist to police federal law enforcement conduct.
Bivens Claims
As discussed in this Sidebar, a key federal law designed to prevent and redress constitutional violations,
such as the right to be free from excessive force under the Fourth Amendment, by state and local
government actors is found in 42 U.S.C. § 1983 (Section 1983). That statute provides a civil cause of
action to recover money damages for “the deprivation of any rights, privileges, or immunities secured by
the Constitution and laws” by any person acting “under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory.” However, federal action is beyond the statute’s reach.
Nonetheless, the Supreme Court has recognized an implied cause of action, similar to the remedy found in
Section 1983, for individuals seeking money damages against individual federal law enforcement officers.
In a 1971 decision, Bivens v. Six Unknown Named Agent of Federal Bureau of Narcotics, the Supreme
Court established that in limited circumstances, “victims of a constitutional violation by a federal agent
have a right to recover damages against the official in federal court despite the absence of any statute

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conferring such a right.” In Bivens, the plaintiff filed a claim against a group of federal narcotics agents
after they conducted what he al eged to be an unconstitutional search of his home in violation of the
Fourth Amendment. The Court, in holding that the plaintiff could pursue money damages for his Fourth
Amendment claim, reasoned that when federally protected rights have been “invaded,” a plaintiff is
entitled to a remedy—whether that remedy is statutorily or judicial y created. Thus, the Court implied a
private cause of action for individuals seeking money damages for Fourth Amendment violations.
The Court implied a remedy for constitutional violations committed by federal actors in two other
circumstances following Bivens. In a 1979 case, Davis v. Passman, the Court held that an administrative
assistant, who sued a Congressman for gender discrimination, could pursue money damages for violating
the equal protection principles embodied in the Fifth Amendment’s Due Process Clause. And a year later
in Carlson v. Green, the Court extended a Bivens remedy to a federal prisoner’s estate seeking money
damages against the Director of the Federal Bureau of Prisons for al egedly failing to provide adequate
medical treatment in violation of the Eighth Amendment.
The Supreme Court, however, has not implied a new cause of action under Bivens in more than 30 years.
For example, the Court declined to extend a Bivens remedy in a First Amendment suit against a federal
employer, in several Eighth Amendment cases brought against private prison officials under contract with
the Federal Bureau of Prisons, and in a Fifth Amendment case for federal government interference with a
landowner’s property rights. The Court continued its trend of limiting Bivens remedies in its 2017
decision Ziglar v. Abassi. In Abassi, the Court considered the availability of a Bivens remedy for a group
of non-citizens—mostly of Arab or South Asian decent—who had been detained following the September
11, 2001 attacks. In declining to extend the doctrine, the Court noted that since Bivens was decided, the
Court had “adopted a far more cautious course” in al owing recovery under judicial y created causes of
action, recognizing that it is a “significant step under separation-of-powers principles for a court to
determine that it has the authority . . . to create and enforce a cause of action for damages against federal
officials in order to remedy a constitutional violation.” As a result, further expansion of the Bivens
doctrine, according to the Court, is now considered a “disfavored judicial activity.”
The Abassi Court provided a two-part test used to determine whether a Bivens remedy is available. First,
the Court looks at whether the case presents a “new context”–that is, whether the case differs
meaningfully from the three cases where a Bivens remedy has been established (i.e., Bivens, Davis, or
Carlson). Second, if the case does present a new context, the Court considers whether there are “special
factors” counseling against creating a remedy. Central to this analysis, according to the Court, are
separation-of-powers principles, and the Court has declined to extend Bivens remedies in cases
implicating issues more appropriate for the other branches, such as federal fiscal policy or international
relations.
Applying this test earlier this year in Hernandez v. Mesa, the Court declined to extend a Bivens remedy in
a case involving a United States Border Patrol agent who fatal y shot a 15-year-old Mexican national who
was on the Mexican side of the U.S.-Mexico border. In so holding, the Court determined that the case
arose under a “new context” because it involved a cross-border shooting claim. Moreover, the special
factors analysis precluded extension of a Bivens remedy because the necessity of a damages remedy for
incidents arising on foreign soil implicated considerations involving foreign policy, counseling hesitation
about extending Bivens to this context.
Despite these limitations on the Bivens doctrine, the Court has emphasized that Bivens itself is “wel -
settled law,” and it continues to al ow for claims against federal actors for money damages in the three
limited contexts the Court has already recognized, including those against federal law enforcement
officers for violations of the Fourth Amendment—such as claims al eging excessive use of force.
Nonetheless, even if a federal court al ows a plaintiff to pursue a Bivens remedy for an al eged
constitutional violation by a federal official, qualified immunity—discussed more in depth in this
Sidebar—may nevertheless shield that federal official from liability.

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The FTCA
The FTCA also provides a remedy for the wrongful acts of federal officials, including federal law
enforcement. Subject to various exceptions, limitations, and prerequisites, the FTCA—enacted in 1946—
al ows plaintiffs to sue the United States for money damages for certain types of state law torts committed
by its employees. The FTCA acts as a waiver of federal sovereign immunity in limited cases involving
tortious acts—such as negligence—committed by United States employees within the scope of their
employment. Unlike a Bivens claim, an action brought pursuant to the FTCA is one against the United
States and not the individual employee. And a plaintiff may not sue the United States in federal court
under the FTCA until he or she first exhausts administrative remedies in the relevant federal agency.
General y, plaintiffs may not recover for intentional conduct committed by federal employees. However,
in 1974—in response to a series of no-knock drug enforcement raids on private homes performed by
federal law enforcement agents—Congress amended the FTCA to al ow for claims of intentional torts of
assault, battery, false imprisonment, false arrest, abuse of process, and malicious prosecution committed
by certain federal law enforcement officers. The amendment applies to “investigative or law enforcement
officer[s]” defined as “any officer of the United States who is empowered by law to (1) execute searches,
(2) seize evidence, or (3) make arrests for violations of Federal law.”
Congress enacted the 1974 FTCA amendment nearly three years after the Supreme Court’s Bivens
decision. In 1980, the Court clarified that the 1974 amendment to the FTCA did not preempt a Bivens
claim, meaning that the judicial y created Bivens remedies were stil available to plaintiffs who could also
bring an FTCA claim. In reaching its decision, the Court emphasized that Congress had expressed its
intent that the FTCA and Bivens actions be “paral el, complementary causes of action.” The Court also
highlighted four factors that suggested the Bivens remedy is more “effective” than the FTCA, and
therefore a Bivens claim should coexist with claims brought under the FTCA: (1) the Bivens remedy,
because it seeks damages against individual officers, serves a “deterrent purpose,” (2) a court may award
punitive damages in a Bivens suit, while 28 U.S.C. § 2674 general y prohibits courts from awarding
punitive damages against the United States in FTCA cases, (3) a plaintiff cannot opt for a jury in an FTCA
action, and (4) an action under FTCA exists only if the state in which the al eged misconduct occurred has
a law prohibiting the conduct.
In 1988, Congress passed the Westfal Act to substitute the United States as the defendant in FTCA claims
to “protect Federal employees from personal liability for common law torts committed within the scope of
their employment.” Congress, however, did not extend the Westfal Act’s protections for individual
federal employees who commit constitutional violations, thus effectively preserving the Bivens remedy.
Therefore, FTCA claims against the United States for certain intentional torts committed by federal law
enforcement may remain available alongside the limited Bivens actions available against individual
federal law enforcement officials. Some courts, however, have interpreted provisions of the FTCA to
preclude recovery under both the FTCA and a Bivens action; thus in some jurisdictions, plaintiffs must
choose whether to proceed under the FTCA or Bivens.
Considerations for Congress
As Congress continues to explore police reform proposals, one issue of consideration has been whether
existing law adequately regulates federal law enforcement. Recently announced police reform bil s in the
House and the Senate include several proposed reforms that specifical y aim to regulate how federal
officers operate in the field. The Just and Unifying Solutions to Invigorate Communities Everywhere Act
of 2020 (JUSTICE Act), for example, includes a provision that would direct the Attorney General to
develop a policy banning the use of chokeholds by federal law enforcement agents except in situations
involving deadly force. And the Justice in Policing Act of 2020 (JIPA), for example, would ban no-knock
warrants in drug cases at the federal level, and would require federal law enforcement officers to use

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deadly force only as a last resort when necessary to prevent death or serious bodily injury. (A more
detailed overview of the provisions in each bil can be found in this Sidebar.)
These and other recent proposals aim to more broadly restructure existing criminal and administrative
remedies regulating federal law enforcement officers. For instance, provisions in both the JUSTICE Act
and the JIPA seek to create or amend existing criminal liability for police, including federal law
enforcement officers. For example, Section 106 of the JUSTICE Act would create a new criminal offense
for “knowingly and wil fully falsify[ing] a report” that involved a law enforcement officer’s violation of
an individual’s constitutional rights. And Section 101 of the JIPA would amend the mental state required
for a conviction under Section 242 from “wil fully” to “knowingly or recklessly.” Other bil s have been
introduced to impose additional administrative oversight of federal law enforcement agencies. Current
proposed legislation, such as H.R. 2203 and S. 2691, would establish a position within the Department of
Homeland Security that would address complaints related to the CBP and Immigration and Customs
Enforcement (ICE) and conduct training on the use of force and civil rights violations.
While recent legislation has addressed civil reforms, many of these efforts have focused on Section 1983
and would have no effect on federal law enforcement officers. For example, H.R. 7085—the Ending
Qualified Immunity Act—and the Reforming Qualified Immunity Act would abolish or curtail qualified
immunity for al officials who may be liable under Section 1983 and would therefore not apply to federal
law enforcement agents in Bivens actions. The JIPA, however, would not only amend Section 1983 by
effectively abolishing the qualified immunity defense for certain state and local police officers, but would
also abrogate the defense in “any action under any source of law against” federal investigative or law
enforcement officers, as defined in 28 U.S.C. § 2680(h). This provision would appear to eliminate the
availability of qualified immunity in Bivens actions.
And with regard to Bivens actions general y, although the Supreme Court has recognized an implied cause
of action for Fourth Amendment violations committed by federal law enforcement, as discussed above,
the Court has expressed its disfavor with extending the Bivens doctrine in new contexts. According to
some commentators, this judicial restraint in extending Bivens leaves individuals without a civil damages
remedy against many federal actors who may have violated their constitutional rights. And there may be
room for legislation with respect to Bivens and the FTCA as they relate to federal law enforcement. The
Supreme Court has continued to emphasize that it is Congress’s role to create a cause of action for
monetary damages against federal government officials. Congress, therefore, could choose to codify a
similar Section 1983-type action for claims against federal officials. In creating a new statutory cause of
action, Congress could establish its parameters, including which federal officials would be liable, what
federal rights would be protected, or whether officials are entitled to qualified immunity. For example,
Congress could make al federal officials liable for violations of al constitutional rights—much like how
Section 1983 regulates state and local officials—or could limit the remedy to cases involving federal law
enforcement officials who commit certain Fourth Amendment violations—such as excessive use of force.
And if Congress chose to create a cause of action specifical y for money damages against federal
officials, it could also decide whether to make the individual actor liable, or whether the action would
be—similar to claims brought under the FTCA—against the United States. Members of Congress have in
the past proposed legislation to al ow recovery against the United States for constitutional violations
committed by its employees. Exposing the United States or federal employees to liability may present
other policy considerations such as increased costs to the federal government in paying for judgments and
additional burdens on the federal agencies in defending such lawsuits.

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Author Information

Whitney K. Novak

Legislative Attorney




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