KENNERLY DAVIS: Here’s A New Way To Disarm Our Weaponized Government

KENNERLY DAVIS: Here’s A New Way To Disarm Our Weaponized Government

Kennerly Davis on June 30, 2023

Officials of the federal government continue to engage in outrageous acts of intimidation that demonstrate a shocking disregard for the civil rights and liberties of American citizens.

Last week, twenty heavily armed Internal Revenue Service (IRS) agents conducted a SWAT-style raid on a gun shop in Montana and confiscated thousands of customer background records that contained no financial information and could have no relevance to any investigation led by the IRS.

In April, an IRS agent showed up unannounced at a taxpayer’s home in Ohio, lied about his identity and purpose to get inside, and then threatened to punish the taxpayer if she did not pay a tax bill she did not owe. And in March, another IRS agent showed up unannounced at the home of journalist Matt Taibbi in the midst of his testimony to Congress about the weaponization of government against political opponents.

Stories like this have become all too familiar: the systematic IRS targeting of conservative organizations during the Obama administration, the raids of peaceful farms and factories by heavily armed inspectors, the threats of prosecution or agency enforcement action that punish dissent and extract shakedown settlements and the retaliation against legitimate whistleblowers within the executive branch. No wonder that our trust in the government continues to hit new lows.

It is especially infuriating that individual federal officials who abuse their authority are seldom, if ever, effectively held to account. Stonewalled congressional hearings come to nothing. Impeachment is too cumbersome to be a practical mechanism for enforcing accountability. Slow-rolled internal agency reviews conclude with some shuffling of personnel and bland assurances of continued commitment to mission and service.

The individual officials involved in abusive activities may, at worst, be reassigned with generous relocation payments, or they may retire with full pensions, benefits and final bonuses. They typically suffer no significant personal consequences for the rights they have violated, and the lives and livelihoods they have damaged.

With the legislative and executive branches of the federal government largely unable or unwilling to hold abusive officials accountable, citizens whose rights have been violated have been left to seek redress on their own through the courts.

Under current law, it is at least theoretically possible for an aggrieved citizen to sue federal officials as individuals and seek to recover money damages from those officials for the harm they have done. But lawsuits like this face significant legal obstacles that are very difficult to overcome.

In a 1971 case, the U. S. Supreme Court noted that the law does not explicitly authorize citizens to sue individual federal officials who violate their rights. The Court did hold that citizens have an implicit constitutional right to sue such individuals but, unfortunately, a series of court decisions since 1971 has steadily chipped away at this concept of an implicit right to sue.

Today, little remains to support a citizen’s suit against abusive individual federal officials. The concept of an implicit right to sue has been drastically restricted and, with certain very limited specific exceptions, there still is no federal statute that explicitly authorizes this kind of suit generally, no matter how egregious the abusive behavior. That needs to change, and history shows us the way.

After the Civil War, during Reconstruction, Congress passed a series of civil rights acts to facilitate enforcement of the rights set forth in the recently enacted Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution. One section of the Civil Rights Act of 1871 was later officially designated Section 1983 of the U.S. Code.

Section 1983 provides an explicit basis for any citizen whose constitutional or legal rights have been violated by a person acting under state government authority to sue that person individually for money damages and equitable relief to account fully for the harm that resulted from the rights violation.

Over the years, Section 1983 has become a powerful tool for individuals to enforce their rights and to hold abusive state government actors accountable. Today, Americans have a growing concern about the threat posed to their constitutional and legal rights by individuals acting under the weaponized authority of the federal government.

It is time, past time, for Congress to revisit Section 1983 and enact a federal version that fully protects Americans against the threats posed to their rights by individuals acting through any of the many means and methods by which the modern administrative state exerts its authority.

Injured citizens should be entitled to recover payment for all their damages suffered, including punitive damages and for all attorney’s fees and other costs incurred to obtain relief.

The new statute could be titled the “Civil Rights Enforcement Act of 2023.” When enacted, it could be designated as a new section of the U.S. Code. “Section 1984” would be appropriate.

Kennerly Davis, Jr. is a former Deputy Attorney General for the Commonwealth of Virginia 

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.