Why do Americans have such deep distrust of their government?
It’s a simple question with a complex answer, but here’s part of the reason: All too often, the government wrongfully inflicts profound harm on American citizens and then leaves them with no recourse. It violates the law and leaves its victims with no way to be made whole.
Let me give you two recent examples, both taken from Supreme Court cases that were argued this term and have not yet been decided.
In the predawn hours of Oct. 18, 2017, an F.B.I. SWAT team detonated a flash-bang grenade at a home at 3756 Denville Trace in Atlanta. A team of federal agents rushed in.
The family inside was terrified. Hilliard Toi Cliatt lived there with his partner, Curtrina Martin, and her 7-year-old son, Gabe. They had no idea who had entered their house. Cliatt tried to protect Martin by grabbing her and hiding in a closet.
Martin screamed, “I need to get my son.” The agents pulled Cliatt and Martin out of the closet, holding them at gunpoint as Martin fell to the floor, half-naked. When they asked Cliatt his address, “All the noise just ended.”
He told them: 3756 Denville Trace. But it turned out they were supposed to be at 3741 Landau Lane, an entirely different house down the block. The agents left, raided the correct house and then returned to apologize. The lead agent gave the family his business card and left the family, according to their Supreme Court petition, in “stunned disbelief.”
Martin and Cliatt sued the federal government for, among other things, false imprisonment, trespass and intentional infliction of emotional distress — and lost. A provision in the Federal Tort Claims Act immunizes government officials when they perform “discretionary functions,” and the lower courts held that the tactical choices that led to the wrong-house raid were discretionary.
But what’s discretionary about finding the right house? Or, as an incredulous Justice Neil Gorsuch said at oral argument last week, “Yeah, you might look at the address of the house before you knock down the door.”
No, the government’s lawyer responded, even something as simple as looking at an address is “filled with policy trade-offs.” Checking the house number, the government argued, “means exposing the agents to potential lines of fire from the windows.”
Yet finding the right house to raid seems to be the most elementary obligation of law enforcement. A person has a right to be secure in his or her own home, and a wrong-house raid is the very definition of the kind of unreasonable search and seizure that the Fourth Amendment of the Constitution prohibits.
Martin and Cliatt aren’t the only victims of law enforcement mistakes to have a hearing at the Supreme Court this term. There’s another, far worse, case that the court heard in January.
It involved a young man named Ashtian Barnes. In April 2016 he was pulled over while driving a rental car near Houston. The car was linked to unpaid tolls, but Barnes didn’t incur the charges (a previous driver did), and Barnes had no way of knowing that the license plate was suspect.
The officer, Roberto Felix Jr., asked Barnes for his license and registration, and when Barnes couldn’t find them immediately, Felix asked him to get out of the car. Then Barnes did something very unwise: He started to drive off.
We don’t know why. We don’t know whether he panicked or if he was trying to flee. But we do know that Felix responded with a terrible mistake of his own. As the dashcam video from his car shows, Felix jumped onto the side of the moving car — placing himself in mortal danger — and then immediately shot Barnes to death.
Barnes should be alive. The only reason Felix was in fear for his life was that he chose an irresponsible course of action. So Barnes’s family sued, alleging an excessive use of force — and lost.
It turns out that under governing law in Barnes’s jurisdiction in Texas, courts are supposed to judge police shootings only by the “moment of the threat.” They should not look at the circumstances that created the threat. And since Felix was reasonably afraid for his life when he was on the moving car, then he was legally justified in pulling the trigger.
But should that be the constitutional rule? Isn’t a better approach to look at the totality of the circumstances and hold that police officers and the government they serve can’t be immune from suit when they help create the very crisis that they then try to solve by pulling the trigger?
Barnes’s case isn’t unique. In 2017, for example, the Supreme Court heard a case brought by a California man, Angel Mendez, who was shot after police entered his home, unannounced and without a warrant. When the police barged in, he grabbed a BB gun, and the police opened fire. He lost his right leg, and his pregnant girlfriend, Jennifer Garcia, was shot in the back.
The court ruled against Mendez and Garcia. The Ninth Circuit had held the officers involved liable because they had “intentionally or recklessly” provoked a violent confrontation and violated the Fourth Amendment when they entered the home without a warrant. But the Supreme Court ruled that the Ninth Circuit had applied the wrong standard and sent the case back to the lower court for more proceedings.
It’s important to note that each of these cases involves only civil liability. The plaintiffs in the case are seeking monetary damages. These are not criminal cases, in which the officers would face potential prison time. That analysis would be substantially different. Instead, the plaintiffs are simply trying to get compensation for their losses.
But even that is too much accountability for a government that imposes legal obligations on its citizens but consistently relieves itself of responsibility for its wrongful acts. Federal law is full of various liability carve-outs and exceptions for the government.
Doctrines like moment of threat and discretionary function and — worst of all — qualified immunity (a legal doctrine that shields government officials from liability unless they violate clearly established constitutional rights) mean that many, if not most, Americans whose rights are violated by the government don’t receive compensation. They must bear the full burden of their loss.
The Supreme Court hasn’t ruled yet in either of the more recent cases, but the oral arguments were promising. Majorities of justices seemed open to rulings that would impose consequences for public misconduct. But at best, the cases will be a baby step, a small gesture toward fixing a broken feedback mechanism of public accountability.
In the years since the racial reckoning in the summer of 2020, I fear that many Americans have grown tired of discussions about systemic injustice. Systems are messy and complex, and it’s hard to allocate individual blame for the long evolution of legal doctrines.
But unless we can change systems and doctrines, changing politicians every two or four years won’t address the fundamental sense that so many Americans share that our system isn’t working the way it was designed to.
The cases I shared are extreme examples of how the law shields the government from accountability, but they’re not an aberration. The legal rules at issue apply to countless cases across the country, and unless the court acts, those rules will continue to teach Americans a toxic lesson: that there is one set of rules for them and a different set for those who possess the most power in public life.
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David French is an Opinion columnist, writing about law, culture, religion and armed conflict. He is a veteran of Operation Iraqi Freedom and a former constitutional litigator. His most recent book is “Divided We Fall: America’s Secession Threat and How to Restore Our Nation.” You can follow him on Threads (@davidfrenchjag).
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