MD should allow a way to hold federal authorities accountable

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Americans are sharply divided over whether the shooting of Renee Nicole Good in
Minnesota was justified or not. We hope that a credible investigation will eventually yield answers we can all agree with. But as a thought experiment — and we hope that is all it will ever be — imagine that a federal agent shoots a Marylander here and suppose also that the shooting violates the Constitution. Would the victim’s family be able to obtain compensation? The answer, unfortunately, is probably not. Maryland should act now to address that problem.

If the shooter were a Maryland official, rather than a federal official, the answer would be more likely to be positive. That’s because federal civil rights laws — specifically, 42 U.S.C. § 1983 — allow families to recover against state and local officials for constitutional violations, subject to defenses like qualified immunity. But that law doesn’t apply to acts committed by federal employees.

The family could assert a claim under the Federal Tort Claims Act. But the Department of Homeland Security could probably evade liability under the FTCA by invoking the discretionary function defense.

The Supreme Court famously allowed Americans to sue federal officials for violations of the Constitution in the Bivens case. But the Court has since limited Bivens suits so narrowly that the family would probably lose such a case.

Maryland, however, might be able to provide its citizens a remedy. Illinois recently enacted a law, known as the Illinois Bivens Act, which allows plaintiffs to sue federal officials under state law for violations of the federal and Illinois constitutions. Other states are considering similar legislation. So should Maryland.

The federal Department of Justice has already sued to invalidate the Illinois statute, calling the law to enforce the Constitution itself unconstitutional and claiming federal law preempts it. It is far too soon to know how the courts will rule on the case. States have long had the authority to decide what conduct is tortious. It is also clear that state laws can apply to federal officials under some circumstances. Indeed, a century ago, the United States Supreme Court held that Maryland could try federal agents under Maryland law.

Maryland should not, however, await the outcome of that litigation, which may take years. If Maryland delays enacting its version of a Bivens law, and courts uphold the Illinois statute, Marylanders injured in the meantime will have lost the ability to obtain compensation.

Such a statute might also deter misconduct. Federal officials who face substantial civil suits for unconstitutional misconduct might engage in a very different calculation than officials who don’t.

Federal officials who harm Marylanders by engaging in unconstitutional acts should face civil liability, just as their state counterparts do. Our stalemated Congress cannot pass a law to accomplish that end, but states that can should not wait for Congress. The Constitution is the fundamental law of our nation and needs to be protected. The Maryland legislature should enact a law allowing people harmed by federal officials acting unconstitutionally to seek damages, fees, and costs in Maryland courts, and enforce our most important law.

Editorial Advisory Board Members Arthur F. Fergenson, George Liebemann, Steven I. Platt and Debra G. Schubert did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

Gary E. Bair

Jill P. Carter

Arthur F. Fergenson

Nancy Forster

Susan Francis

Julie C. Janofsky

Ericka N. King

George Liebmann

George Nilson

Steven I. Platt

Angela W. Russell

Debra G. Schubert

Jeff Sovern

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.