Supreme Court weighs effort to shield federal law enforcement as ICE complaints rise

The Supreme Court is seen on Oct. 1 in Washington, D.C. J. Scott Applewhite/AP hide caption

J. Scott Applewhite/AP

Five years ago, a gang riot broke out inside a federal prison in Hawaii.

Kekai Watanabe was beaten with a makeshift weapon known as a "lock in a sock."

When he complained about serious back pain, a nurse told him to "stop being a cry baby."

Seven months later, doctors diagnosed Watanabe with a fractured tail bone, and he sued the nurse for violating his Eighth Amendment right against cruel and unusual punishment.

On Monday, the Supreme Court will hear his case, which could determine whether federal law enforcement officers can be held to account when they violate constitutional rights. The claim by Watanabe, now 40, echoes far beyond the walls of prison — and into American streets where immigration officers have been accused of beating and running over migrants.

"What's at stake here is whether, basically, we as a country are going to hold federal law enforcement officers accountable when they violate clearly established constitutional rights," said Georgetown law professor Steve Vladeck, who filed a "friend of the court" brief in the case. "I mean, it really is, I think, that stark."

It's already difficult for these claims to proceed, because the court requires people to show the facts in their cases are identical to precedent. In the federal prisons, the landmark case dates to 1980. The prisoner in that lawsuit died from untreated asthma. The nurse's lawyers say Watanabe, the inmate from Hawaii, survived the gang attack in 2021, so his case is different enough that it should be dismissed.

Mary Hampton Mason worked at the Justice Department for nearly 35 years, in an office that evaluated these kinds of legal claims. Mason said rogue officers are rare, and problems are typically systemic.

"It's a result of agency culture, it's a result of training, it's a result of all sorts of things, but these failures are really institutional," Mason said.

The Supreme Court created a right to sue federal officers for wrongdoing in a 1971 case known as Bivens. But Mason said that precedent has been hollowed out for years, and the court should finally overrule it because it gives plaintiffs false hope.

"In fact in the last 20 years, I'm only aware of one Bivens case that has resulted in a judgment for the plaintiffs that … didn't get reversed on appeal, and that's in thousands and thousands and thousands of cases filed," she said.

But supporters of the prisoner say that number doesn't account for settlements or how these lawsuits can deter other bad behavior. If individual federal officers and agents can be on the hook financially, the argument goes, they could think twice before breaking the law.

"That's why damages are so important," said Gregory Cui, an attorney at the MacArthur Justice Center, a civil rights legal organization. "Because they're a way to try to fix things, to give a person the means to pay for medical care or rebuild their life."

In a "friend of the court" brief, Cui reported that the grievance process for people inside federal prison almost never works for inmates, who succeed just 1% of the time in changing things such as access to medical care or better conditions behind bars.

Cui and other legal experts said the Supreme Court agreed to hear this case at a time when abuses by federal immigration agents and others are in the spotlight. Now, they said, is the wrong time for the court to eliminate one of the few avenues of accountability for those errant officers.

"A world with no Bivens is a world in which federal law enforcement officers would enjoy absolute immunity, where no matter how egregious their conduct is, no one can hold them liable," said Vladeck, of Georgetown Law Center. "As alarming a prospect as that may have been five years ago, it should be an especially terrifying one today, and it ought to be one that even this Supreme Court is worried about endorsing."

Both sides agree Congress has the power to weigh in and give people whose rights have been violated by federal officers a clear way to sue. But so far lawmakers have not advanced legislation to hold those people to account.