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Courts must hold rogue cops accountable everywhere — even at the dentist

by The Editorial Board

Vietnam veteran José Oliva survived his service in the war and decades in law enforcement, but his most perilous moment came when he tried to get through security at the Veterans Affairs hospital in El Paso for a dental appointment.

The retiree, who was 70 years old at the time of the incident, was slammed to the ground by federal police, who wrenched his shoulder and held him in a chokehold before arresting him for disorderly conduct – a charge that was later dropped.

Police were shielded from liability in Oliva’s case. It’s a compelling example of how far many judges will go to place federal cops above the law.

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Oliva filed suit against the officers, asserting that he placed his ID in a bin for inspection. But the officers contended he tried to enter without “clearing security.”

A video says otherwise: One officer is seen approaching Oliva by the bin and motioning him toward the metal detector. As Oliva complies, that officer and two others go on the attack.

In 2019, a federal trial judge in Texas found that police violated Oliva’s constitutional rights by using “excessive force on an unresisting suspect” who had committed no crime and refused to grant qualified immunity to shield them from punishment.

But things went downhill for Oliva from there.

The officers appealed, and the Fifth Circuit Court of Appeals threw out the case against them. This year, the Supreme Court refused to hear Oliva’s appeal.

If unlawful or unconstitutional action by a government official has no “clearly established” precedent, there is no grounds for a lawsuit – the official is protected by qualified immunity. Because two cases are seldom exactly the same, this threshold becomes nearly impossible to meet, and civil cases against offending parties are dismissed as a result.

While Oliva died in August, the issue he raised for himself and others whose rights have been trampled remains relevant and a key to the national battle to rein in rogue cops.

In parts of the U.S., federal officers enjoy near-absolute immunity from lawsuits, no matter how badly they behave. Under a 1988 law, they cannot be sued in state courts. And in federal courts, an avenue to sue that was opened in 1971 has been all but closed off.

In 1971, the Supreme Court ruled that federal narcotics agents violated the constitutional rights of Webster Bivens by handcuffing him during a warrantless search of his New York home, arresting and strip-searching him. For decades that ruling provided accountability, but the Supreme Court has since limited how that case applies.

In 2017, the Supreme Court established a new test: If a claim is meaningfully different from the Bivens case, then the courts should weigh whether “special factors” warrant hesitation about extending the Bivens precedent into a new context. Many courts — particularly in the Fifth and Eighth Circuits — have taken that first test to absurd extremes, throwing out any case that does not mirror Bivens.

In Oliva’s case, instead of focusing on rogue officers using a chokehold for no reason, the Fifth Circuit blocked punishment of the cops because their actions occurred in a VA hospital, not a home, and didn’t involve narcotics or a strip-search — an interpretation so narrow that almost no case would survive.

Worse yet, these poisonous rulings are spreading.

In 2020, U.S. Park Police and local cops charged into Lafayette Square across from the White House and used tear gas, pepper balls, batons and other excessive means to disperse a peaceful crowd protesting the murder of George Floyd.

When protesters sued for violation of their constitutional rights, a federal judge allowed the case to go forward against local police but threw out charges against all federal officials.

Now in Lafayette Square, which for decades has been a prominent location for demonstrations, federal police can do just about anything to citizens without fear of being held to account in a civil court.

Fifth Circuit appeals judge Don Willett, nominated by former President Donald Trump, has lamented that courts are creating “a Constitution-free zone” in many places where “rogue federal officers” can violate rights with impunity.

Congress could fix the problem, but the issue has gotten little attention.

It’s now up to the Supreme Court. Lawyers at the non-profit Institute for Justice are seeking review of two cases where federal police – including a local cop assigned to a federal task force – have been let off the hook after egregious actions.

The court should take this opportunity to make clear that no part of the U.S. will give out-of-control police a free pass to abuse Americans.

This editorial is part of a series by the USA TODAY Opinion team examining the issue of qualified immunity. The project is made possible in part by a grant from Stand Together. The opinions offered are those of the USA TODAY Editorial Board. Stand Together does not provide editorial input.

USA TODAY’s editorial opinions are decided by its Editorial Board, separate from the news staff and the USA TODAY Network. Most editorials are coupled with an Opposing View, a unique USA TODAY feature.



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