FIRE joins Institute for Justice, files amicus brief seeking remedies for Black Lives Matter protesters

When a government official violates your constitutional rights, you can go to court to vindicate them, right? 

If the defendant is a state official, the answer is yes — Congress has created a remedy in civil rights law. But when the defendant is a federal official, in far too many cases the answer has been no. 

Last week in Black Lives Matter D.C. v. Barr, FIRE joined the Institute for Justice in an amicus curiae — “friend of the court” — brief asking the U.S. Court of Appeals for the D.C. Circuit to recognize the availability of a claim against former Attorney General William Barr and other federal officials. The case was brought by Black Lives Matter protesters who were tear gassed by law enforcement at Lafayette Square, a public forum for speech outside the White House grounds, while protesting the murder of George Floyd in the summer of 2020. The district court found that state officials had violated Black Lives Matter’s clearly established constitutional rights, denying a defense of qualified immunity, but dismissed the factually similar claims against federal officials, demonstrating the absurdity of this two-tiered system of justice.

The D.C. Circuit should let Black Lives Matter’s claims through.

FIRE has consistently argued that federal courts should recognize First Amendment claims for damages against federal officials under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, a 1971 Supreme Court decision that recognized certain claims for monetary damages “directly under the Constitution.” Bivens involved the Fourth Amendment, but courts also have relied on it to recognize First Amendment claims against federal officials, as FIRE and IJ’s brief argues. 

FIRE previously filed a First Amendment Bivens claim on behalf of student journalist Jared Nally and The Indian Leader — a student newspaper censored at a university operated by the federal Bureau of Indian Education. FIRE also argued for the availability of such claims in an amicus brief in Egbert v. Boule, a recent Supreme Court case holding that First Amendment retaliation claims are not available under Bivens, and finding that Congress is better suited than the courts to provide a remedy for such claims.

Our brief argues that Congress did provide a remedy for claims involving interference with protest rights when it passed the Westfall Act in 1988. At that point in time, the courts — including the D.C. Circuit — recognized the availability of a Bivens claim under the First Amendment in similar circumstances. More to the point, our brief argues that Congress expressly preserved the availability of those claims in the text of the Westfall Act:

Indeed, the Westfall Act’s “explicit exception for Bivens claims,” Hui v. Castaneda, 559 U.S. 799, 807 (2010), cemented the fact that these causes of action, insofar as they existed at the time of the Act’s passage, would persist undiminished until a further act of Congress. The question, therefore, is what Bivens claims Congress effectively endorsed in the Westfall Act. 

[The D.C. Circuit’s] decision in Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977), recognizing the availability of Bivens remedies in First and Fourth Amendment claims brought by protesters at the seat of a branch of the federal government, remains relevant today because Congress preserved these claims in the Westfall Act. 

As our brief argues, courts must presume that Congress was familiar with Dellums when it passed the Westfall Act — and it probably was, because that case involved a protest on the steps of Congress, and the named plaintiff was a sitting member who still held office in 1988. If protesters at Congress had a First Amendment Bivens claim in 1988 when the Westfall Act “left Bivens where it found it,” as the Supreme Court has said, then so too does Black Lives Matter outside the White House.

In Egbert, the Supreme Court may have shut the door to certain First Amendment Bivens claims. But Congress left open a window when it passed the Westfall Act. The D.C. Circuit should let Black Lives Matter’s claims through.