American government officials enjoy an extraordinary amount of immunity when it comes to liability for wrongdoing. If, for example, a Bureau of Land Management employee trespasses onto private property and harasses the property owner, the officer probably can’t be sued in federal court. Likewise, if a prison official denies a prisoner adequate medical care, he too stands little chance of being held accountable in federal court.
Federal officials’ special status results not from federal statutes but from common law; it is the nation’s judges who have, over time, made it harder for victims of government wrongdoing to hold the government accountable, rather than easier. Judges have fashioned sweeping doctrines of immunity that insulate federal and state officials from facing any liability. Under these doctrines, victims of government wrongdoing cannot recover damages from government officials unless they can point to some prior case that has found the government conduct unlawful.
Courts have also made it harder to sue federal officials at all. In a series of cases over the past several decades, the Supreme Court has questioned whether federal courts may allow private citizens to sue rogue federal law-enforcement officers if Congress has not allowed them to. Most recently, the Supreme Court held that a group of Southeast Asian men who were detained in the course of the government’s response to September 11th could not sue the federal officials who kept them incommunicado for an extended period of time, allegedly on the basis of their race and religion, and subjected them to violence and abuse.