Legal Corner: Constitutional liability for federal versus state and local officials

Although state and local officials have long worked with or been asked to work with federal agencies and their officials, the level of coordination sought by the federal government has reached new heights under the current federal administration. Moreover, there has been an increase in activity by federal officials in various settings such as immigration enforcement and protest response. As state and local officials are faced with increasing pressure to coordinate or work with the federal government, there are various considerations that municipalities should take into account. Aside from understanding what actions are authorized or prohibited by state law, municipalities should also consider how constitutional liability for federal officials may differ from their own liability.

State and local official liability

State and local officials can be held liable for violating a person’s constitutional rights under the U.S. Constitution through 42 U.S.C. § 1983 (Section 1983). This law protects constitutional rights ranging from freedom of speech to due process to protection against unreasonable searches and seizures. When bringing this type of claim, aggrieved individuals can seek monetary damages, injunctive relief, and attorney’s fees. Officials are entitled to qualified immunity if there was no constitutional violation or if the law does not clearly establish that the official’s actions were a constitutional violation.

Under Section 1983, government employers of state and local officials can also be held liable if there is an entity policy, practice, or custom that caused the plaintiff’s injury. This includes unconstitutional acts by employees that were taken pursuant to an entity policy or practice, as well as acts by final policymakers, which are attributed to the entity.

In Colorado, there is an analogous cause of action to allow an individual to sue a peace officer for violating their rights under the Colorado Constitution. This cause of action falls under the Law Enforcement Integrity Act (LEIA), passed as part of Senate Bill 20-217. Although LEIA claims largely mirrors Section 1983 claims, peace officers cannot assert qualified immunity as a defense to the LEIA and LEIA claims cannot be brought against a government entity. Additionally, LEIA claims can only be brought against peace officers whereas Section 1983 claims can be brought against any state or local government officials.

Federal official liability

In the federal context, individuals cannot bring Section 1983 claims against federal officials. Instead, there is a judicially created federal analog under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), that allows individuals to sue federal officials in certain circumstances. Bivens claims are significantly more limited than Section 1983 claims in several ways: (1) individuals can only assert violations of their Fourth, Fifth, and Eighth Amendment rights; (2) remedies are limited to monetary damages; (3) attorney’s fees can be more difficult to obtain; and (4) claims cannot be brought against a federal agency. Like Section 1983, federal officials can assert qualified immunity as a defense.

The limitation on the constitutional rights that can be vindicated through a Bivens claim was established by a 2022 U.S. Supreme Court decision — Egbert v. Boule, 596 U.S. 482 (2022). In Boule, the Court declined to recognize a First Amendment claim on grounds that it has never previously recognized such a claim under Bivens, as well as a Fourth Amendment claim because of the immigration and border security context in the case, which was not present in past Bivens cases.

Practical considerations

So why should you care about understanding the difference in liability for state and local officials as compared to federal officials? Because the difference in liability risk matters when considering whether and in what manner municipal officials should work with federal officials. While Section 1983 and Bivens claims extend to all government officials, this risk analysis is particularly important when it comes to law enforcement officers.

Municipal police officers may already work on federal task forces and now may be being asked to work with ICE, the FBI, National Guard, and other federal law enforcement related agencies. When working with federal officers, it is important that municipal peace officers understand that federal officers do not face the same broad constitutional liability risks that state and local officials face. Local officials must always ensure that they are not violating any constitutional rights whereas federal officers are unlikely to face liability under Bivens for violating certain constitutional rights such as the First Amendment and, in certain immigration/national security contexts, the Fourth Amendment.

As such, if a municipality chooses to engage with a federal agency in some manner, it is important that municipal officials not automatically follow the lead or direction of federal officials. Given the distinct risk considerations, municipal officials should draw on their specific training and knowledge of state and constitutional law to ensure that their actions are defensible under the law.