What does it take to hold federal police accountable for using excessive force? That question is once again being raised with cases being appealed to the U.S. Supreme Court. And it’s coming to the Justices in the form of a petition from Kevin Byrd, a Texas mechanic who was almost shot to death by a federal officer in a dispute over a purely personal matter.
Kevin is not fighting alone. The Institute for Justice (IJ) represents him in his U.S. Supreme Court appeal. And three groups of exceptional scholars and cross-philosophical public policy organizations are supporting him with friend-of-the-court briefs in which they urge the Justices to take up Kevin’s case.
This legal fight started for Kevin on February 2, 2019, when he was at a restaurant asking questions about a drunk driving car crash that injured the mother of Kevin’s child. There, Kevin encountered the father of the driver involved in the crash—Department of Homeland Security Agent Ray Lamb. Displeased that Kevin was asking questions that could get his son into trouble, Agent Lamb resolved to stop Kevin. With his gun drawn, Lamb jumped out of a truck, yelling that he would “put a bullet through” Kevin’s “f—ing skull” and “blow his head off.” At the time, Kevin was in his car, getting ready to leave the restaurant. The agent tried to enter Kevin’s car by hitting the driver’s side window with his gun. Failing to break through, Lamb tried to shoot Kevin, but his gun malfunctioned.
Terrified for his life, Kevin called 911. When local police arrived, Lamb showed them his federal badge, prompting the officers to detain Kevin in the back of a police car. Thankfully, the entire encounter was recorded on video. After reviewing it, the officers let Kevin go and arrested Lamb for aggravated assault and misdemeanor criminal mischief.
Because nothing came of the charges, Kevin sought accountability in the only legal forum available to him—a federal district court. He initially succeeded, because the district court held that even qualified immunity—an obstacle that already makes it extremely difficult for victims of constitutional abuse to seek accountability—does not protect an officer who commits such a clear constitutional violation. But when Lamb appealed to the 5th U.S. Circuit Court of Appeals, his victory turned into a defeat because, according to that court, federal officers are entitled to absolute (not qualified) immunity, meaning they cannot be sued at all simply by virtue of being employed by the federal government. This holding prompted one of the judges sitting on the panel to lament that in Texas, Louisiana and Mississippi federal officers now operate in a “Constitution-free zone.”
“Had Agent Lamb worked for a state or local government, a case against him would have proceeded to trial,” said Patrick Jaicomo, an attorney for the Institute for Justice, which represents Kevin in his appeal to the U.S. Supreme Court. “But because he happens to be a federal cop, he gets away Scot free.
“That’s not only wrong, it is also inconsistent with our history,” added IJ Attorney Anya Bidwell, co-counsel in the case. “Remember that the Constitution first and foremost limited the power of the federal government and only applied to the states after the Civil War.”
On August 6, Kevin and the Institute for Justice filed a petition for certiorari in the U.S. Supreme Court, asking the Justices to take on the case and reverse the 5th Circuit’s decision.
They are now joined by a diverse group of highly respected law professors and public policy organizations that filed briefs in support of the Court taking up Kevin’s case. These include briefs by:
Professor Peter Schuck, the Simeon E. Baldwin Professor of Law Emeritus at Yale University. An academic legend in the field of constitutional accountability, Prof. Schuck wrote a treatise—Suing Government: Citizen Remedies for Official Wrongs (1983)—which became the foundational text on the subject and inspired many great legal minds to get involved in the field. In his brief, Professor Schuck argues that the 5th Circuit’s decision denying Kevin his day in court “departs radically from this Court’s established framework for evaluating damages claims against federal officials for constitutional torts, creating a split among the circuits.” Supreme Court review, therefore, is not only warranted but badly needed.
Professor Seth Stoughton, a former police officer who, among other appointments, teaches at the University of South Carolina School of Law. Professor Stoughton is a well-respected authority on the use of force issues that plague our nation today. According to his brief, the 5th Circuit is home to one of the largest federal law enforcement forces in the country. There are more than 18,000 federal law enforcement officers in Texas alone, with the 5th Circuit overall hosting more than 20,500 federal police. This means that if the 5th Circuit’s decision is allowed to stand, a constitutional remedy will “effectively be abolished exactly where it is most crucial.”
The ACLU, Cato Institute, DKT Liberty Project, Goldwater Institute, Law Enforcement Action Partnership and New Civil Liberties Alliance filed a cross-philosophical brief arguing that the nation needs a reevaluation of the excessive force jurisprudence and also needs to get back to the original principles of this country’s founding, specifically the ideal that where there is a right, there must be a remedy. The 5th Circuit’s decision cannot be allowed to stand lest this foundational principle be denied to those who most need it.
“We are grateful for the support of esteemed Professors Schuck and Stoughton, and of the amazing cross-philosophical group of amici,” said Scott Bullock, IJ president and general counsel. “In this polarized moment in our nation’s history, it is inspiring to have such a broad coalition, especially at this early stage of Supreme Court review. We all agree that the Constitution is not an empty promise but provides vitally important constraints on government power. We ask the Supreme Court to grant review and make this absolutely clear to federal courts nationwide.”
This case is litigated as part of the Institute for Justice’s Project on Immunity and Accountability, which seeks to hold government officials more accountable when they violate individual rights. As part of the Project, IJ will continue to fight against the many special protections that shield government officials from accountability.
For more information on this and IJ’s other cases dealing with holding federal officials accountable when they violate someone’s constitutional rights, visit: https://ij.org/case/federal-police-immunity-cert-petitions/.
DonnyFerguson.com 
Wow! We thought QI was an infringement on our enumerated rights. Absolute Immunity? What does that really mean? If an employee of the FEDGOV can “legally” get away with murder, what does that portend for the Government at large? Absolute immunity from accountability at any and every federal level? That sounds suspiciously similar to what George III and his parliament tried in the late 18th century in the then colonies.
LE at every level has a difficult job to do, but making them “above the law” will not help, rather it will make them targets primarily by the bad actors in society, and unfortunately, even the good guys will look at LE with concern.
This decision must be overturned and the federal government clearly needs to be told they are accountable at every level and a willful, inexcusable violation of basic law will get them the same treatment as anyone else who choses to so do.
This HLS Agent ought to be arrested and charged in state or county court and the Blue Line ought to not look the other way.
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