In an extraordinary move, a federal judge in Colorado has called upon Congress to roll back the U.S. Supreme Court’s broad limitations on suing federal officials for constitutional violations.

U.S. District Court Senior Judge William J. Martínez, in an Aug. 3 order, criticized the fact that prisoners, if they are in a federal facility, are largely precluded from holding corrections officials legally accountable. Martínez lamented that he had to dismiss a cruel-and-unusual punishment lawsuit from plaintiff Anderson Straker, even though Straker supplied evidence that guards goaded another inmate into attacking him – including a signed statement from his assailant saying as much.

“Congress must act promptly to rectify this gaping void in the remedies available to federal prisoners subjected to unconscionable misconduct on the part of federal corrections officers,” Martínez wrote.

Lawsuits seeking money against federal officials are known as a “Bivens remedy,” named after the 1971 Supreme Court decision Bivens v. Six Unknown Named Agents. The Supreme Court initially authorized Bivens remedies in three specific circumstances: unreasonable searches and seizures, sex discrimination and deliberate indifference to an inmate’s serious medical needs.

However, the Supreme Court has since broadcast that it is largely unwilling to allow Bivens remedies in other types of cases. In contrast, a federal law known as Section 1983 facilitates lawsuits against state officials for constitutional violations. While state employees may still be subject to immunity depending on the nature of their conduct, there is no blanket prohibition on bringing such claims in the first place.

Henry Rose, a law professor at Loyola University Chicago, has advocated for Congress to expand Section 1983 to allow lawsuits against federal officials as well, breaking down the Supreme Court’s barrier to plaintiffs. He said Congress, to date, has shown no interest in his suggested policy.

“My reaction to these judicial comments is that some federal judges are frustrated by their inability to provide justice to litigants whose constitutional rights have obviously been violated by federal actors,” Rose said.

Colorado Politics sent inquiries to U.S. Reps. Joe Neguse and Ken Buck, who are members of the judiciary committee, as well as to U.S. Sens. John Hickenlooper and Michael Bennet, but received no response.

Straker’s lawsuit alleged that employees at the U.S. Penitentiary in Florence were responsible for instigating another inmate’s attack on him, and then failing to do anything to help him. At the time, Straker was serving a life sentence for his role the death of a U.S. citizen in Trinidad and Tobago. The government eventually agreed to his resentencing and release after Straker and his co-defendants challenged the conduct of defense counsel and the prosecution.

Before coming to Florence, Straker was incarcerated in Allenwood, Pa. Other inmates attacked him there and officials allegedly prevented him from filing a grievance. Once at Florence, Straker was able to submit a grievance. However, a group of employees – who were not identified by their full names – put Straker in a cell with an “extremely violent” inmate.

The employees told the inmate Straker was a “snitch” who “killed a U.S. citizen.” They promised he would not have to attend certain prison programming if he agreed to assault Straker. The inmate, within five minutes of being placed with Straker, proceeded to beat him up. He received “head nods and thumbs up” from the guards afterward. The defendants allegedly refused to provide Straker with medical treatment.

In support of his lawsuit, Straker attached a signed statement from his assailant, Demetrius Puifory. Puifory attested the guards knew the word “snitch” was a “trigger for violence,” and they chose him to attack Straker because of his violent history.

“Prior to this incident, I had not known Mr. Straker and I had nothing against him, nor do I have nothing against him now,” Puifory wrote. “I committed this act specifically and solely at the request of the guards.”

The government moved to dismiss Straker’s lawsuit for cruel and unusual punishment and retaliation largely for one reason: there was no Bivens remedy. The defendants cited a 2022 decision from the U.S. Court of Appeals for the 10th Circuit, which has jurisdiction over Colorado, blocking an inmate from suing a guard who allegedly assaulted him. The 10th Circuit agreed the Supreme Court had tied its hands.

Martínez acknowledged that Straker’s allegations similarly fell outside the narrow category of cases the Supreme Court has allowed to proceed. But he made clear he believed that outcome to be unjust.

“Plaintiff’s allegations discussed above portray a truly reprehensible and malicious course of conduct on the part of Defendants. Had the alleged events in this case occurred in state correctional facilities, Plaintiff would have very strong claims under Section 1983 for significant monetary damages,” Martínez wrote. 

“The slow and steady evisceration of Bivens by the Supreme Court over the years, coupled with the persistent failure on the part of Congress to provide federal prisoners like Mr. Straker with a statutory remedy,” he continued, “has created a fundamentally unjust legal state of affairs.”

Although it is uncommon for federal judges to encourage Congress to overturn the Supreme Court’s line of case law, Martínez, a Barack Obama appointee, is not alone in venting his frustration. Judge Don R. Willett, a Donald Trump appointee in Texas to the U.S. Court of Appeals for the Fifth Circuit, previously blasted the shield for federal officials in a 2021 opinion.

“Private citizens who are brutalized – even killed – by rogue federal officers can find little solace,” he wrote.

Tricia S. Lindsay, a New York-based attorney who represents Straker, said she had never seen a federal judge call on Congress to overturn the Supreme Court’s limitations on Bivens remedies, but she deemed it a “step in the right direction.”

“These officials must be made to answer for their crimes and placed in the same facilities they are paid to police when they break the law,” Lindsay said. “It is a dangerous signal to send that one’s right to be safe, secure and protected can be eradicated without consequence by the very people meant to ensure these things. “

The case is Straker v. Stancil et al.