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In the summer of 2020, local and federal police tear gassed protesters at Lafayette Square during Black Lives Matter protests, violating their First Amendment rights and causing physical and psychological harm in the process. A federal court held that the victims could sue local officials to receive compensation for the harm they suffered, but denied them the right to sue the federal police officers. Why? Because according to the court, the lawsuit did not qualify as a “Bivens action,” the type of case in which Congress authorized ordinary citizens to sue the federal government for constitutional violations. 

This is wrong. Neither the Constitution nor Congress have authorized a two tier system of constitutional accountability, where federal officials enjoy greater immunity for violating federal constitutional rights than do state or local officials. Yet that’s exactly what the court signed off on here. On November 30, 2022, FIREjoined the Institute for Justice in filing an amicus brief with the D.C. Circuit Court of Appeals, asking the court to throw out this unconstitutional tiered system of justice and preserve the right of victims to seek recovery when federal officials violate their constitutional rights.

On June 23, 2023, the United States Court of Appeals for the District of Columbia Circuit affirmed the lower court's ruling.