Regulating Federal Law Enforcement: Considerations for Congress

Regulating Federal Law Enforcement: Considerations for Congress

Legal Sidebari

Regulating Federal Law Enforcement:
Considerations for Congress
Updated February 23, 2023
Incidents involving the use of force by law enforcement, such as the 2020 death of George Floyd and the
2023 death of Tyre Nichols, have raised questions 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 Customs and Border Protection (CBP). This Sidebar explores the
existing criminal, administrative, and civil remedies that impose liability on federal law enforcement
officers 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 officers.
Current Law Regulating Federal Law Enforcement
Existing federal laws provide a number of criminal, administrative, and civil remedies to hold law
enforcement officers and agencies accountable for misconduct.
Federal Criminal Law
One way to regulate the behavior of federal law enforcement officers is through criminal law. The chief
criminal law regulating federal, state, and local law enforcement officers is 18 U.S.C. § 242 (Section
242)—described in more 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 constitutionally protected rights. According to
the U.S. Department of Justice (DOJ), 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.” The Supreme Court has explained that to successfully prosecute an alleged
offender—such as a police officer—under Section 242, 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
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.” Section 242 has been used in recent years to investigate Border
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Patrol agents, U.S. Park Police, and FBI agents. 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 guidelines and statutes provide more limited methods of remedying
misconduct by federal law enforcement within the confines of a given agency. Agencies’ internal policies
may address how federal law enforcement agents conduct themselves in specific situations, including
provisions on when the use of force is appropriate. For example, the Attorney General’s Guidelines for
Domestic FBI Operations instruct that “acts of violence” are not authorized unless FBI agents are
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,
more general 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 DOJ to “review information
and receive complaints alleging abuses of civil rights and civil liberties” by DOJ employees, including
employees of the FBI; the DEA; the Federal Bureau of Prisons (BOP); the Bureau of Alcohol, Tobacco,
Firearms, and Explosives; and the U.S. Marshals Service. DOJ has relied on this congressional directive
to investigate allegations 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 allegations 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 allegations of excessive use of force by federal law
enforcement agents and reported findings to the DOJ Civil Rights Division for possible prosecution or
other administrative misconduct.
Civil Remedies Under Bivens and the FTCA
Beyond criminal and administrative remedies that the government may use to address excessive use of
force, some limited civil remedies also exist for individuals to seek redress against federal law
enforcement officials for misconduct.
Bivens Claims
42 U.S.C. § 1983 (Section 1983), as discussed in more detail in this Legal Sidebar, is a 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. No federal statute provides an
equivalent cause of action against federal officials. Instead, the Supreme Court has recognized an implied
cause of action, similar to the Section 1983 remedy, for individuals seeking money damages against
individual federal law enforcement officers in certain circumstances.
In its 1971 decision Bivens v. Six Unknown Named Agents 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
conferring such a right.” In Bivens, the plaintiff filed a claim against a group of federal narcotics agents
after they conducted what he alleged to be an unconstitutional search of his home. 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

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statutorily or judicially created. Thus, the Court held that the Constitution implicitly includes a private
cause of action for individuals seeking money damages for Fourth Amendment violations.
The Court recognized an implied 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 a claim under
the equal protection principles embodied in the Fifth Amendment’s Due Process Clause. One year later, in
Carlson v. Green, the Court extended a Bivens remedy to a federal prisoner’s estate against the director of
BOP for allegedly failing to provide adequate medical treatment in violation of the Eighth Amendment.
The Supreme Court has not recognized a new implied 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
BOP, 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
declining to extend the doctrine, the Court noted that since Bivens was decided, the Court had “adopted a
far more cautious course” in allowing recovery under judicially 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. Second, if the case does
present a new context, the Court considers whether there are “special factors” counseling against creating
a remedy. If any such factors are present, then the Bivens approach of an implied remedy is inappropriate.
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. The Court has most recently declined to extend a
Bivens remedy in the 2020 case Hernandez v. Mesa and the 2022 case Egbert v. Boule.
Despite these limitations on the Bivens doctrine, the Court has emphasized that Bivens itself is “well-
settled law,” and it continues to allow 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 alleging excessive use of force.
Nonetheless, even if a federal court allows a plaintiff to pursue a Bivens remedy for an alleged
constitutional violation by a federal official, qualified immunity—discussed in more depth in this
Sidebar—may shield that federal official from liability.
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—
allows 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 federal employees within the scope of their
employment. In contrast to a Bivens claim, which is brought against the individual official, an action
brought pursuant to the FTCA is one against the United States. The FTCA does not allow such a suit until
the plaintiff first exhausts administrative remedies in the relevant federal agency.
Generally, plaintiffs may not recover for intentional torts, such as assault or battery, committed by federal
employees. However, in 1974—in response to a series of no-knock drug enforcement raids by federal law

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enforcement agents on private homes—Congress amended the FTCA to allow 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],” which is 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 judicially created Bivens remedies were still available to plaintiffs who could also
bring FTCA claims. In reaching its decision, the Court emphasized that Congress had expressed its intent
that the FTCA and Bivens actions be “parallel, complementary causes of action.” The Court also
highlighted four factors that suggested that 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
serves a “deterrent purpose” because it seeks damages against individual officers; (2) a court may award
punitive damages in a Bivens suit, while 28 U.S.C. § 2674 generally prohibits courts from awarding
punitive damages against the United States in FTCA cases; (3) a plaintiff cannot opt for a jury trial in an
FTCA action; and (4) an action under the FTCA exists only if the state in which the alleged misconduct
occurred has a law prohibiting the conduct.
In 1988, Congress passed the Westfall 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 did not extend the Westfall 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 consideration has been whether existing
law adequately regulates federal law enforcement. Police reform bills introduced in the 116th and 117th
Congresses included several proposed reforms that would have regulated how federal officers operate in
the field. The JUSTICE Acts of 2020 and of 2021, for example, included provisions that would have
directed the Attorney General to develop a policy banning the use of chokeholds by federal law
enforcement agents except in situations involving deadly force. The Justice in Policing Acts of 2020 and
2021 (JIPA) would have banned no-knock warrants in drug cases at the federal level and would have
required federal law enforcement officers to use deadly force only as a last resort when necessary to
prevent death or serious bodily injury. (A more detailed overview of the provisions in these bills can be
found in this Sidebar.)
These and other proposals would have more broadly restructured existing criminal and administrative
remedies regulating federal law enforcement officers. Provisions in both the JUSTICE Act and the JIPA
sought to create or amend existing criminal liability for police, including federal officers. For example,
Section 106 of the JUSTICE Acts of 2020 and 2021 would have created a new criminal offense for
“knowingly and willfully falsify[ing] a report” that involved a law enforcement officer’s violation of an
individual’s constitutional rights. Section 101 of the JIPA of 2020 and 2021 would have amended the
mental state required for a conviction under Section 242, changing it from “willfully” to “knowingly or
recklessly.” Other bills would have imposed additional administrative oversight of federal law
enforcement agencies. Legislation introduced in the 116th Congress, such as H.R. 2203 and S. 2691, and
in the 117th Congress, such as H.R. 3557, would have established a position within the Department of

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Homeland Security that would have addressed complaints related to the CBP and Immigration and
Customs Enforcement and required training on the use of force and civil rights violations.
Legislation introduced in the 116th and 117th Congresses would also have reformed civil liability for law
enforcement. Many of these efforts focused on Section 1983, which would have had no effect on federal
law enforcement. For example, H.R. 7085/S. 4142, the Ending Qualified Immunity Act, and S. 4036, the
Reforming Qualified Immunity Act (introduced in the 116th Congress), would have abolished or curtailed
qualified immunity under Section 1983. (The Ending Qualified Immunity Act was reintroduced in the
House and the Senate in the 117th Congress). Because Section 1983 applies only to state and local
officials, these proposals would not have applied to federal law enforcement in Bivens actions. The JIPA,
however, would also have abrogated the qualified immunity 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 have appeared to eliminate the availability of qualified immunity in Bivens actions.
With regard to Bivens actions generally, 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 disfavor with extending the Bivens doctrine to 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. The Court’s
caution in this area, however, is explicitly intended to allow Congress to consider remedies for such
violations, and the Court has continued to emphasize that point in recent cases. Congress, therefore, could
choose to create a 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, and whether officials are entitled to qualified immunity. For
example, Congress could make all federal officials liable for violations of all constitutional rights—much
as Section 1983 does for 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.
If Congress chose to create a cause of action specifically for money damages against federal officials, it
could also decide whether to make the individual actor liable, as in Section 1983, or whether the action
would be against the United States, as in the FTCA. Members of Congress have in the past proposed
legislation to allow recovery against the United States for constitutional violations committed by federal
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.

Author Information

Whitney K. Novak

Legislative Attorney

Disclaimer

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