Federal Law Enforcement Cases: Whose Policy, Whose Training

The Federal Bureau of Investigation, the Drug Enforcement Administration, the Bureau of Alcohol, Tobacco, Firearms and Explosives and the U.S. Marshals Service are part of the Department of Justice, and a case against one of their agents can involve more than one layer of written direction. The Department's use-of-force policy is written for the whole Department, its law enforcement components keep their own use-of-force training programs, and an operation can add written instructions of its own. Each layer is read as it stood on the date of the incident, and where the layers differ, the report states the difference.

The same reading applies to an agent of a Department of Homeland Security component. Which directives governed the agent that day, at every level that issued them, and what training the agent received on them are questions the record answers, not assumptions the analysis brings to it.

In Indian country the question takes another shape. Police services there can be provided directly by the Office of Justice Services within Indian Affairs at the Department of the Interior, or by a tribe through a self-determination contract or compact, and the FBI works with tribal police and the Office of Justice Services on major crimes within its jurisdiction there. Which entity employed the officer, under what arrangement, and which directives and training went with it are read from the documents that created the arrangement.

A federal use of force can arise in a planned operation: the service of an arrest or search warrant, or the apprehension of a fugitive. The analysis reads a federal operation the way it reads any planned operation, starting well before the door: the intelligence the team had, the threat assessment, the operations plan and briefing, the assignments, and whether the entry and any force matched the plan and the directives behind it. Tactical deployments and high-risk warrant service are covered at SWAT and high-risk operations, and the planning file at high-risk warrant service plans.

As a police officer in Georgia, Professor Gilbertson served as a SWAT team member, and he reads the tactical record with that experience. Recordings, where they exist, are read against any camera policy that applied to the agents on that date: whether cameras were required for that operation, whether they were worn and activated, and what the access and retention records show, as set out under body-worn camera policy.

42 U.S.C. § 1983 reaches a person acting under color of the law, custom or usage of a State, a Territory or the District of Columbia, and how practices testimony fits a claim under it is set out in what a Section 1983 claim is. When the officer was a federal agent acting under federal authority, the route is a different question.

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), held that a violation of the Fourth Amendment by a federal agent acting under color of his authority gives rise to a cause of action for damages. The complaint there alleged a warrantless arrest and search by narcotics agents and unreasonable force in making the arrest. In Egbert v. Boule, 596 U.S. 482 (2022), the Court observed that it had declined repeatedly over more than four decades to imply similar claims for other alleged constitutional violations, and it held that a court of appeals erred in allowing a Fourth Amendment excessive-force claim to proceed under Bivens against a Border Patrol agent, for two independent reasons: Congress was better placed to create remedies in the border-security setting, and the Government had already provided alternative remedies. The Court said the inquiry often comes down to whether there is any reason to think Congress might be better suited than a court to create a damages remedy.

The second route runs against the United States. Under 28 U.S.C. § 1346(b), part of the Federal Tort Claims Act, and subject to the Act's other provisions, including the exceptions in 28 U.S.C. § 2680, the federal district courts have exclusive jurisdiction over civil actions for money damages against the United States for personal injury or death caused by the negligent or wrongful act or omission of a federal employee acting within the scope of the employee's office or employment, in circumstances where the United States, if a private person, would be liable under the law of the place where the act or omission occurred. Section 2680(h) excepts claims arising out of assault, battery, false imprisonment, false arrest and other listed torts, but its law enforcement proviso applies the Act to claims arising on or after its enactment out of assault, battery, false imprisonment and false arrest, among others, where the acts or omissions were those of an investigative or law enforcement officer of the United States, defined there as an officer empowered by law to execute searches, to seize evidence or to make arrests for violations of federal law. Millbrook v. United States, 569 U.S. 50 (2013), held that the waiver the proviso effects reaches a law enforcement officer's acts or omissions within the scope of employment whether or not the officer was executing a search, seizing evidence, making an arrest or otherwise engaged in investigative or law enforcement activity. Section 2680(a) separately excepts claims based on the exercise or performance of, or the failure to exercise or perform, a discretionary function or duty, whether or not the discretion involved was abused.

The route changes the defendant and the legal standard the facts are fitted to: a claim for damages against the agents themselves, where one is recognized, or a claim against the United States measured by the law of the place where the act or omission occurred. It does not change the practices record, which is read the same way for either. Which route is open, whether an exception applies, whether an agent acted within the scope of employment and what the proviso reaches in a given case are legal questions. Legal conclusions remain counsel's; the expert addresses police practices.

The analysis this page describes is Professor Gilbertson's. His career includes service as an international police trainer and advisor in Iraq and Afghanistan, and his expert practice has run since 2014, with more than 220 civil rights and criminal cases across 42 states and the District of Columbia; the full biography is at Professor Gilbertson. In the practice's table of cases, 4 civil matters name the United States or a federal agency as a defendant, and the complete table is provided to retaining counsel on request.

All three experts are introduced on the team page. Consultants are retained case by case, and each reviews the record independently within his own discipline. The team includes FBI Special Agent Christopher Holland (Ret.), whose discipline is crime scene analysis, wrongful convictions and investigative casework; his background is on his page.