STAY INFORMED

Burt Neuborne, Professor Emeritus, New York University Law School

The current Congress has been bitterly criticized as a “do-nothing” body. In one fell swoop, however, it can transform itself into one of the Nation’s most significant legislative bodies by closing a giant loophole in 42 U.S.C. sec. 1983 to provide protection against both state and federal officials.

George Floyd and Renee Good were killed less than a mile apart in Minneapolis by law enforcement officials who misused lethal force to apprehend or restrain them in violation of the same Supreme Court precedent – Tennessee v. Garner, 471 U.S 1 (1985). In Tennessee v. Garner, the Supreme Court ruled that, in the absence of “significant evidence” that a victim posed a real threat to the officer’s life or safety, the Fourth Amendment’s ban on “unreasonable search and seizure” prohibits law enforcement officials from using lethal force to apprehend a fleeing felon, much less a frightened mother like Renee Good.

George Floyd’s killers, members of the Minneapolis police force, were brought to criminal justice in state court after a painstaking investigation and a fair trial. Floyd’s family received a $27 million payment in civil damages. Renee Good’s tragic death will likely result in neither a serious criminal investigation, nor meaningful civil justice. Why not?

The federal criminal investigation route has been blocked by self-serving Trump officials committed to protecting heavily armed, ill-trained ICE agents who have been let loose on our immigrant communities. State and local authorities have simply been frozen-out of the FBI’s march to exoneration.

The state criminal legal route is complicated and perhaps blocked by a bizarre 1890 Supreme Court opinion, In re Neagle, preventing California from prosecuting a Supreme Court Justice’s official bodyguard, U.S. Marshall David Neagle.

The civil legal route for wrongful death damages is complicated by an indefensible hole in our civil rights laws. In 1871, in the wake of the civil war, Congress authorized federal courts to grant damages against state or local officials who deprive persons of “rights, privileges, and immunities” protected by the “Constitution and laws of the United States.” 42 U.S.C sec. 1983. That’s what allowed George Floyd’s family to obtain civil justice for his murder. It is what allows ordinary persons to hold state and local officials liable in federal court for violating the federal constitution. Since 1961, Sec.1983 has been an indispensable bulwark of our freedoms. Monroe v. Pape 365 U.S 167 (1961). 

Unfortunately, Congress has inexplicably failed to provide parallel protection against identical abuses by federal officials. 

For a time in the 1970’s, the Supreme Court filled the void by allowing so-called Bivens constitutional damage actions against federal law enforcement officials without a specific Congressional authorization. Unfortunately, the current Supreme Court has nailed that door shut, leaving a huge hole in the law into which Renee Good’s federal wrongful death claim against her murderer may well disappear. To be sure, a narrow legal opening may exist for an award of damages under the Fourth Amendment based on a 1971 case (Bivens v. Six Unknown Agents), but since 1984, the Court has resolutely rejected every (by my count 13) constitutionally based damage claims against a federal official in the absence of a statute authorizing an award of damages. Thus, while Bivens is on life support, it is a thin reed on which to rest Renee Good’s claim for damages.

The notoriously inadequate Federal Torts Claim Act is also unlikely to provide serious relief. While Congress has authorized FTCA claims against the United States for damages caused by federal employees, the statute excludes “intentional torts” like battery and assault and excludes conduct requiring “discretion” by a federal official.  

Congress could fill the civil justice hole tomorrow by adding four words to the existing text of 42 USC Sec. 1983. The current law provides:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of [the United States, or] any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

All that need be done is to add “the United States, or” to the existing text. The amendment could be made retroactive to cover the murder of Renee Good. We’ll all be safer for it.

What is Congress waiting for?

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The Parnas Perspective, by Aaron Parnas

Aaron Gideon Parnas is an American journalist based on TikTok. As of 2025, he has over 4.5 million followers on TikTok, 3 million more across other platforms, and his Substack newsletter, The Parnas Perspective, is the top-ranked news newsletter on the site with more than 615,000 subscribers.

Robert Reich 

Robert Reich is a Berkeley Professor, writer, former Secretary of Labor, author of The System, The Common Good, Saving Capitalism, Aftershock, Super capitalism, The Work of Nations. Co-creator of "Inequality for All" and "Saving Capitalism." Co-founder of Inequality Media, and a contributor to Substack.