Trying to bring an end to the ‘Constitution-free zone’
The Supreme Court may be given another opportunity to fix the immunity problem it created – and allowed to spin out of control.
According to the Institute for Justice, the court will consider a petition to hear an appeal of a Texas case in which a federal officer shot Kevin Byrd in a personal dispute. The officer was given absolute immunity – because he had a federal badge:
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.”
This is the sort of legal outrage that should unite all factions into a full throated defense of liberty and civil rights. And yes, the Supreme Court should not only take the case, and do away with the idea of absolute immunity, it should go further and make clear that no badge is a shield against the Constitution.