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from Nick Sibilla.
Setting an important precedent for law enforcement accountability and religious liberty, the U.S. Supreme Court last month sided with three Muslim men who say they were forced onto the No-Fly List when they refused to becomes informants for the FBI. With the ruling unanimous, Tanzin v. Tanvir reaffirms the principle that individuals can sue federal agents for violating their rights.
Muhammad Tanvir, Jameel Algibhah, and Naveed Shinwari are practicing Muslims who were approached by the FBI to spy on their communities. When the men refused to collaborate, they soon found themselves unable to fly. That came with a heavy cost. The men were effectively barred from visiting family members abroad, while Tanvir was forced to quit his job as a trucker.
To vindicate their rights, Tanvir and the others sued the FBI agents for monetary damages under the Religious Freedom Restoration Act (RFRA). For nearly 30 years, RFRA has let individuals “whose religious exercise has been burdened” seek to “obtain appropriate relief against a government,” which includes any “branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.”
But since RFRA doesn’t explicitly define what counts as “appropriate relief,” the case sought to determine “whether ‘appropriate relief’ includes claims for money damages against Government officials in their individual capacities.” By a vote of 8-0, the court agreed with Tanvir that it does. (Since oral argument occurred before Amy Coney Barrett’s confirmation, she did not participate in the case.)
“In the context of suits against government officials, damages have long been awarded as appropriate relief” and have “coexisted with our constitutional system since the dawn of the Republic,” Justice Clarence Thomas wrote for the court. Moreover, suing for damages is not just “appropriate,” Thomas noted, “it is also the only form of relief that can remedy some RFRA violations.” For Tanvir’s lost income and “wasted plane tickets, effective relief consists of damages, not an injunction.”
Thomas also cited cases involving one-off violations, including the desecration of religious property and an unauthorized autopsy that violated Hmong beliefs, where injunctions would be useless—and only damages could remedy. “It would be odd to construe RFRA in a manner that prevents courts from awarding such relief,” Thomas added. “Had Congress wished to limit the remedy to that degree, it knew how to do so.”
“It is a soaring feeling. I made my life in this country, so this is important not just for me, but for everybody,” Tanvir said in a statement. “I don’t want the same thing that the FBI did to me to happen to others.”
The Supreme Court also dismissed the Justice Department’s argument that allowing lawsuits for damages against government officials could “raise separation-of-powers concerns.” “To the extent the government asks us to create a new policy-based presumption against damages against individual officials, we are not at liberty to do so,” Thomas wrote. “Congress is best suited to create such a policy. Our task is simply to interpret the law as an ordinary person would.” After all, preventing anyone from filing a damages claim under RFRA would let judges nullify causes of actions passed by Congress—a clear breach of the separation of powers.
“To be sure, there may be policy reasons why Congress may wish to shield Government employees from personal liability, and Congress is free to do so. But there are no constitutional reasons why we must do so in its stead,” the justice added. “We cannot manufacture a new presumption now and retroactively impose it on a Congress that acted 27 years ago.”
Though Tanvir and the other men can now proceed with their lawsuit, they could soon encounter another procedural roadblock. In a footnote, Thomas noted that the FBI agents are “entitled to assert a qualified immunity defense when sued in their individual capacities for money damages under RFRA.” Found nowhere in the Constitution and created whole-cloth by the Supreme Court, qualified immunity shields government employees from any legal liability, unless they infringed on someone’s “clearly established” rights. Since only a handful of federal courts have heard claims for damages under RFRA, it’s quite possible that Tanvir could still lose his case on the grounds that his rights weren’t “clearly established.”
Nevertheless, the decision in Tanzin v. Tanvir may signal a new receptiveness among the court to hold government officials accountable. Last month, the Supreme Court denied qualified immunity to Texas prison guards who kept an inmate in cells “teeming with human waste,” allowing the man’s Eighth Amendment lawsuit to continue. This rejection of qualified immunity was the first such denial in more than 15 years by the Supreme Court. (Curiously, Thomas was the only justice who dissented, and he did not explain his reasoning.)
That same month, the High Court held oral argument in Brownback v. King, which hinges on whether the government can create a new form of immunity for police brutality cases. This government accountability case centers around James King, who was brutally beaten by police officers in broad daylight and has been fighting for years to get his day in court.
“The Supreme Court has provided its full-throated endorsement of damages as a necessary and historic mechanism for constitutional accountability,” said Scott Bullock, president and general counsel of the Institute for Justice, which is representing King. “In doing so, the court also reiterated its support for the foundational principles of this country, such as that damages can be awarded to check the government’s power and that it is Congress’ job to engage in policy making. The court’s job is to interpret the law, not to do policy.”