Primers about How to File Suit under the Federal Tort Claims Act

There are limited ways to bring suit against federal officers, like those employed by ICE. Section 1983--typically used to sue state and local officials for constitutional violations--cannot be used to sue the feds. In 1971, the Supreme Court announced that federal officers could be sued directly under the U.S. Constitution, despite Section 1983 not applying to them, but these claims (called Bivens claims for the case that first recognized them) can only be brought under very limited circumstances.

The other avenue to relief under federal law is the Federal Tort Claims Act. Although many consider the FTCA the only viable federal path forward--except in states that have recently created state law causes of action for violations for the federal constitution (more on that later)--there are several hurdles and challenges in bringing claims under the FTCA.

Two new primers offer some very useful guidance. One, by Nora Engstrom at Stanford, is extremely comprehensive and focuses on claims arising out of Minnesota. The other, by civil rights lawyer Jim DeSimone, is more concise and focuses on claims arising out of California.

Anyone bringing, or considering suing federal officers should consult these terrific primers.

Civil Rights Deserts

Fred Smith (Stanford Law) and I wrote an essay for a symposium at Harvard Law School convened to consider threats to democracy and accountability in the second Trump Administration. Smith and I write that such threats are nothing new--indeed they exist throughout our country in what we call "civil rights deserts." We illustrate what we call "accountability deserts" and "enforcement deserts" through harrowing stories of civil rights abuses in Rankin County and Hinds County, Mississippi. We also offer proposals to create oases of sorts through litigation, media scrutiny, community advocacy, sustained judicial oversight, and coordination with supportive government officials. We hope that these case studies can offer important lessons for addressing threats to constitutional accountability and the rule of law wherever they emerge.

If you're Interested, you can take a look here: https://harvardlawreview.org/print/vol-139/civil-rights-deserts/. And the whole symposium issue Is fabulous and available here: https://harvardlawreview.org/.

The Tenacious Power of Constitutional Torts

A few weeks ago, I had the pleasure of giving the Paul M. Van Arsdell Jr. Memorial Lecture at the University of Illinois College of Law. The lecture is intended to "promote thoughtful discussion on litigation and dispute resolution systems and the highest ethical ideals of the legal profession."

I decided to use the opportunity to articulate what suing the government can accomplish, both because I've recently written a book dedicated to explaining just how difficult it is to bring such suits (which might leave readers with the false impression that attempting to do so is a fool's errand), and also because suing the government seems such a critical necessity in this moment, even as it is no silver bullet to cure what ails our democracy.

If you're interested in learning more, the talk is here, the draft paper is here, and a shorter version of the paper, written for the State Court Report, is here.