federal agent

WASHINGTON  — The Constitution protects the rights of Americans but normally does not allow them to sue federal agents for violating those rights.

This rights vs. remedies dispute has divided the Supreme Court for nearly 50 years.

It did so again Monday when the justices heard arguments on whether to throw out a lawsuit brought by a federal prison inmate in Hawaii who suffered a broken tailbone in a gang fight.

Kekai Watanabe said he told prison nurse Francis Nielsen he was in intense pain. He was given only an over-the-counter pain medication. Seven months later, an X-ray finally revealed the damage from the fracture and the source of his continuing agony.

Acting on his own, Watanabe sued Nielsen for cruel and unusual punishment in violation of the 8th Amendment.

A federal judge dismissed his suit, citing the Supreme Court’s decades of skepticism over such lawsuits. However, the 9th Circuit Court of Appeals revived his claim and pointed to a 1980 ruling that allowed a similar suit brought by a mother whose son died of an asthma attack in a federal prison.

It was the last time the high court had upheld a lawsuit for money damages against a federal agent for violating a constitutional right.

But the Supreme Court agreed to hear an appeal in Nielsen vs. Watanabe. And during Monday’s arguments, the justices debated whether to further narrow such lawsuits or to reject them entirely.

The court’s conservatives say only Congress can authorize lawsuits for money damages against federal agents and employees. And they noted that in the Federal Tort Claims Act, Congress authorized damage suits against the United States for such claims.

“The power to create damages remedies belongs to Congress, not federal courts,” said Lucas Walker, an attorney for the prison nurse. “It’s time to end the Bivens experiment.”

He was referring to a 1971 decision in which the Supreme Court for the first time authorized such a constitutional claim for money damages against federal agent. In that case, known as Bivens, the suit was against several FBI agents for an unreasonable search during a drug raid in violation of the 4th Amendment.

Walker argued the court should overturn the Bivens case as well as the later ruling allowing a suit involving gross medical negligence.

But Joshua Wesneski, an attorney for Watanabe, said the prospect of being sued for wrongdoing “has a powerful deterrent effect.”

This issue has taken on new significance because of the aggressive and sometimes violent actions of federal immigration agents. They may be charged with a crime but they are not subject to being sued for damages by victims or their families.

After the Civil War, Congress passed an enforcement law that authorized suits against state and local officials acting under color of law who violated constitutional rights. But there is no comparably broad law for federal officers and agents.

That’s why a Los Angeles police officer who uses excessive force can be sued in a federal court, but the same is not true of a federal immigration agent.

Democrats in the Senate may try to change that in the year ahead.

Sens. Alex Padilla (D-Calif.) and Richard Blumenthal (D-Conn.) have proposed an “Accountability for Federal Law Enforcement Act” to allow victims to sue for “damages for constitutional and civil rights violations committed by federal law enforcement agents.”

They said Congress needs to extend the same legal accountability to federal agents that has long applied to police and other state and local officials.

“Recent incidents — from violent ICE and CBP raids to abuses by federal task forces — have underscored this gap in accountability,” Padilla said. “These events have eroded public trust and shown how federal officers can act with impunity even when their conduct clearly violates constitutional protections.”

Buried in the language of Proposition 45, the initiative that would overhaul California’s powerful law on environmental review, are provisions that would mean government agencies have to consult only with certain tribes in the state, and not others when they develop major projects.

Tribes that are federally recognized would be consulted; those without recognition would not.

This effort mirrors similar ones supported by tribes that have federal recognition to limit the say of tribes without it in recent years. Non-recognized tribes see it as another move by economically powerful tribes to protect their own interests and avoid having to negotiate with other local tribes over territorial disputes and how to best protect important sites.

“Our concern is that wealthy casino interests and political influence are being allowed to outweigh ancestral connections,” Andrew Salas, chairperson of the Gabrieleño Band of Mission Indians — Kizh Nation, said in a statement to The Times.

Proposition 45 on the Nov. 3 California ballot would create a streamlined environmental review process for projects deemed “essential” — including most housing, transportation, water, health, wildfire mitigation, education, internet access and clean energy projects. The streamlining would mean stricter deadlines for review and court challenges, would bar local governments from requesting repeated analyses and allow developers to propose a single alternative with less environmental impact rather than several.

One of the largest contributors to the Yes on Prop 45 committee is a federally recognized tribe, the Yuhaaviatam of San Manuel Nation, which contributed $750,000.

“Federal recognition is the legal and constitutional foundation of tribal sovereignty and establishes a government-to-government framework for consultation,” Amelia Matier, spokesperson for Yes on Prop 45, said, noting tribes without recognition still can still meaningfully participate alongside members of the public.

The Yuhaaviatam of San Manuel Nation reaffirmed its support for the measure in a statement to The Times but did not respond to specific questions.

Critics, meanwhile, say moves such as this would give federally recognized tribes the power to consult on development projects hundreds of miles outside their homelands, overriding local tribes.

“Proposition 45 is part of a much longer struggle over whose voices California chooses to hear,” Salas said. “For decades, non-federally recognized ancestral tribes in Southern California have fought to protect our homelands while facing pressure to accept a ‘lesser role’ than federally recognized tribes.”

“Our rivers, habitats, and the animals that depend on them lose their protection when the people who know these places are removed from the table,” he said.

None of the Gabrieleno and Tataviam tribes within the greater L.A. area have federal recognition.

Last year, three tribes with federal recognition championed a bill that would have significantly limited how tribes without it could participate in the consultation process for all projects — not just the ones deemed “essential” ones under Proposition 45. A few months later, the small state agency that maintains the official list of tribal contacts unveiled a proposal that some non-recognized tribes argued would effectively exclude them. Multiple federally recognized tribes supported the effort.

The environmental review process under the California Environmental Quality Act, better known as CEQA, is one of the primary ways that tribes have a say over how the state and local governments develop land within their ancestral territories. It allows tribes to comment on how a proposed housing or infrastructure project might harm graves, ceremonial grounds or ancient villages. A separate law lets tribes comment on general plans that outline where developers can propose housing, and commercial and industrial facilities.

Tribal consultation differs from general public comment. It allows Indigenous leaders to discuss the location and details of sensitive information — such as burial sites — confidentially, before draft environmental reviews are published.

The Kizh Nation has used the CEQA process to consult on hundreds of land development projects a year around the Los Angeles Basin. In one instance, the process generated extra protections for one of the oldest living plants in the world, a more-than 13,000 year-old oak tree in the Inland Empire, that Indigenous people have taken care of for millennia. It also resulted in the Kizh Nation winning one of the largest land returns in Southern California history for a tribe without federal recognition — while still creating a development of nearly 1,700 homes and industrial and business parks.

There are over 100 tribes in the state with federal recognition, a status that brings protections, funds and services from the federal government, including funding for Indigenous elementary and secondary schools, access to healthcare and the potential for a reservation. Yet dozens more remain unrecognized.

Federal agents negotiated treaties in the 1850s with more than 130 Indigenous communities in the new state of California, setting aside roughly 7% of the state for reservations. But Congress refused to ratify the very treaties it had ordered and failed to notify tribes of its decision.

The federal recognition process today is long and grueling. Only 18 tribes have successfully achieved recognition through it since it was created in 1978. Only one was in California — Death Valley’s Timbisha Shoshone Tribe.

Tribes along the coast who were coerced into building the missions, including the Gabrielino, have had an especially hard time gaining recognition. They endured three waves of settlers: the Spanish, Mexican, and American. With these came death, forced displacement and cultural suppression. When the federal government sent agents to create reservations for California’s mission-affected tribes in the 1890s following reports of dire circumstance, the agents inexplicably overlooked the Gabrieleno.

At least one-third of tribal cultural resources protected under CEQA are in the homelands of tribes without federal recognition, Jonathan Cordero, executive director of the Assn. of Ramaytush Ohlone, estimates.

If Proposition 45 passes, “that means that hundreds of sacred sites and thousands of invaluable and irreplaceable tribal cultural resources would be destroyed in subsequent years,” he said in a statement.

WASHINGTON — Federal agents on Monday searched the home of Democratic U.S. Rep. Ilhan Omar, a startling escalation in a criminal investigation that brings renewed scrutiny to the frequent target of Trump administration derision in the final weeks of her reelection bid.

Omar said she will “not be silenced” and called the search of her home the “latest escalation” in President Trump’s ‘‘intimidation” campaign.

The search of the Minnesota congresswoman’s home so close to next month’s midterm contests that will determine control of the House and the Senate was swiftly condemned by top Democrats in Congress and raised questions about the timing given longstanding Justice Department protocol to avoid overt investigative steps involving political candidates in the direct run-up to an election.

The Justice Department confirmed in a statement that Homeland Security Investigations agents executed a judicially authorized search warrant in the Washington, D.C., area in connection with an ongoing federal criminal investigation but provided no other details.

The nature and scope of the investigation were unclear, though officials in Trump’s administration have repeatedly hinted at the existence of an inquiry targeting Omar, a Somali-born Democrat whose status as an immigrant to the U.S. and left-wing views have repeatedly drawn criticism from Republicans and senior Trump officials.

Homeland Security Secretary Markwayne Mullin said last month that there was an “ongoing investigation” related in part to whether Omar lied on her immigration forms and that “something’s going to happen.”

Though the Republican focus on Omar’s background dates back years, the search of her home took place three weeks before the November midterms, in which Omar is on the ballot for reelection. The Justice Department has historically sought to avoid public investigative actions involving a candidate within 60 days of a primary or general election.

“For years, Donald Trump and far-right extremists have relentlessly targeted Congresswoman Omar with vile personal attacks and baseless accusations,” top House Democratic leaders said in a statement. “Now, less than 30 days until the midterm election, his violent mass deportation machine has descended upon the home of a duly elected Member of Congress and her family.”

A Homeland Security officer walks out of the Washington residence of Rep. Ilhan Omar, D-Minn., during a search, Monday.

(J. Scott Applewhite / Associated Press)

Trump has frequently targeted Omar

Trump as recently as this past weekend brought up Omar at a rally in Tennessee, where he attacked her upbringing and suggested that Vice President JD Vance “and our people” were investigating her.

Vance has in the past accused Omar of committing immigration fraud — an allegation she has denied — and has said he and a top White House official were trying to figure out how to investigate her.

On Monday morning, the street
in Washington where Omar lives was blocked off as HSI agents remained near the home.

“This enforcement action is part of an ongoing federal criminal investigation,” the department said.

A spokesperson for the Department of Homeland Security, of which Homeland Security Investigations is part, referred questions about the search to the Justice Department.

Omar has long been a target for Republicans

Omar, who was first elected to the House in 2018, represents Minnesota’s 5th District, including Minneapolis. She is part of “The Squad,” progressive lawmakers who are a vibrant political force on the left wing of Congress but have also endured repeated attacks from Trump, dating to his first term. She was one of the first two Muslim American women in the House and the first African refugee to be elected to Congress.

When Republicans swept control of the House in 2023, they voted to oust Omar from the Foreign Affairs Committee, citing her anti-Israel remarks.

In January, Trump lashed out at Omar during a rally in Iowa hours before an assailant sprayed the congresswoman during a town hall meeting in Minneapolis with a substance that turned out to be vinegar. The attacker was sentenced to 14 months in prison.

Republicans have raised questions about Omar’s past since before she was elected, including asserting that she had married her brother and committed immigration fraud. Omar has broadly denied the allegations as “disgusting lies.”

“It certainly seems like something fishy is there, but everybody’s entitled to equal justice under the laws,” Vance told reporters in May. “So we’re going to investigate it. We’re going to take a look at it. If we think there’s a crime, we’re going to prosecute that crime.”

In a separate interview with conservative podcaster Benny Johnson, Vance said without offering evidence that “we actually think that Ilhan Omar definitely committed immigration fraud against the United States of America.”

He said that he and deputy White House chief of staff Stephen Miller had been discussing it.

“That’s the thing that we’re trying to figure out,” he said. “What are the legal remedies now that we know that she’s committed immigration fraud? … How do you build the case necessary to get some, some, some justice for the American people?”

Omar’s office has defended her against past allegations

Omar’s office in March dismissed Vance’s claims as fabricated and defamatory.

“This is rich coming from someone who literally said they were willing to ‘create stories’ to redirect the media,” Omar’s chief of staff, Connor McNutt, said in a statement.

“This is a ridiculous lie and desperate attempt to distract from the pedophile protection party’s unpopular war of choice, increasing gas prices, and rapidly dropping polling numbers,” McNutt said.

Tucker and Richer write for the Associated Press. AP writers Lisa Mascaro, Michelle L. Price and River Zhang in Washington, Kathy McCormack in Concord, N.H., Mike Catalini in Morrisville, Pa., and Meg Kinnard in Columbia, S.C., contributed to this report.