Articles of Distraction

[Angrboda]

Legal scholars said the contrast was troubling.

“The prospect of the United States agreeing to spend taxpayer dollars to settle President Trump’s questionable legal claims is all the more galling given how hard it is for ordinary people to obtain compensation when they are actually abused by federal officials,” said Alexander A. Reinert, a professor at the Benjamin N. Cardozo School of Law.

“American citizens wrongfully detained by ICE officers, or law-abiding individuals subjected to excessive force by federal law enforcement agents,” Professor Reinert added, “face significant hurdles even getting their claims heard in court.”

Justice Neil M. Gorsuch pondered the point in June in a Supreme Court decision as he delivered an incremental interim victory to a traumatized family whose home was wrongly raided.

Could such people sue the federal government for damages? Justice Gorsuch asked. “The answer is not as obvious as it might be,” he wrote.

Indeed, said Joanna C. Schwartz, a law professor at the University of California, Los Angeles. She called the Federal Tort Claims Act a “hyper-technical statute riddled with exclusions” that made it difficult to win even when federal law enforcement engaged in clear wrongdoing.

The law protects law enforcement officials who have exercised discretion, a high bar that suits rarely clear. (That provision was at issue in the June case, when the court unanimously ruled that the family should have another chance to make the difficult showing required by the law.)

As a result, Professor Schwartz said, even U.S. citizens who have been wrongly arrested and detained by ICE agents in recent months may struggle to win relief.

Unlike Trump, Most Who Seek Money for Official Misconduct Face Long Odds