Resuscitating State Damages Remedies Against Federal Officials

If a federal official violated your constitutional rights, what can you do about it? The answer is often, “Not much.” While declaratory and injunctive relief are available for ongoing harms, the familiar federal tools for remedying past constitutional violations have offered limited recourse. A landmark federal statute, 42 U.S.C. § 1983, provides a cause of action for damages only against state and local actors. Decades ago, you could have sued a federal actor under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, which allowed individuals to sue for damages directly off the Constitution when federal officials commit constitutional violations— but today the Supreme Court has made that court-created remedy, in the words of one scholar, “essentially nonexistent.” And while the Federal Torts Claims Act offers some relief, it comes with significant hurdles and limitations that may make recovery difficult or even impossible in many cases. The result is that many victims of unconstitutional federal action — excessive force, retaliatory investigations, or unlawful property destruction — are left without a meaningful path to compensation.

As concerns mount about the conduct of federal agents, the possible solution of state-created damages remedies for federal constitutional violations is gaining steam in states. It’s what Professor Akhil Amar once dubbed “converse § 1983.” As the State Democracy Research Initiative details, the core idea is simple: States can enact (or amend existing) civil rights statutes that allow damages suits against any person — including a federal officer — who violates federal constitutional rights. While there are some unanswered questions and likely hurdles, the historical pedigree and legal footing for such remedies is perhaps stronger than some skeptics might assume.

What Is Converse 1983?

A converse 1983 remedy is a state cause of action — an authorization to sue — that provides damages (and other relief) when anyone, including a federal employee, violates someone else’s federal constitutional rights. Some states already have provisions that fit. The plain text of California’s Bane Act, as well as Massachusetts’s, Maine’s, and New Jersey’s civil rights acts, all reach federal officials whose conduct runs afoul of the U.S. Constitution. Additional states, including New York, have introduced bills to do the same; others could tweak existing civil-rights statutes to cover federal officers and federal constitutional violations. It also may be possible for state courts, which have common-law authorities that federal courts lack, to recognize such actions judicially.

Converse 1983 mechanisms don’t create new substantive rights; they instead supply a state-law vehicle for enforcing existing federal rights — the same rights that Section 1983 and Bivens aim to vindicate. But critically, they need not mirror existing federal remedies exactly. Because the lawsuit itself would stem from a state-created authority, there may be opportunities for states to tailor relief and immunities in ways that depart from existing federal approaches. For example, states can decide whether to authorize attorneys’ fees, consider the possibility of treble or punitive damages, or seek to limit defenses like qualified immunity. States could even try to disclaim official immunities altogether. It’s not clear how a federal court would treat such a disclaimer, but states would have strong arguments that applying existing official immunity standards to converse 1983 is by no means required by current doctrine and is, in fact, in some tension with recent jurisprudential trends.

Converse 1983 and the Supremacy Clause

Because there are few real-world examples of individuals using converse 1983 statutes to sue federal officials for violations of their federal constitutional rights, it is uncertain how litigation might unfold. However, if sued, defendants will likely raise federal constitutional objections to converse 1983 actions, arguing that these remedies run counter to principles of federal supremacy. After all, can states really police the actions of federal actors?

The simple answer is yes. There is a long history of state common-law suits against federal actors. As scholars have demonstrated, these state officer suits were the norm for most of American history. In fact, as my colleague Bryna Godar explores, the U.S. Constitution’s Supremacy Clause has allowed for state criminal prosecutions of federal officers in some circumstances. There is no evident constitutional barrier to states creating a cause of action against federal officials for violating the Constitution.

Conceptually, converse 1983 does not subordinate federal law to state law, which is what the Supremacy Clause prohibits. It does the opposite: it enforces the federal Constitution. Thus, what’s known as “Supremacy Clause immunity” shouldn’t apply. As the U.S. Supreme Court recently recounted, that doctrine has historically operated as a partial shield in criminal cases — protecting officers from state prosecution when they were carrying out lawful federal duties in a necessary and proper way. Even if it applied to civil suits, there is nothing necessary or proper about violating the federal Constitution; by definition, such actions cannot further the lawful objectives of the federal government.

Converse 1983 also comports with the related doctrine of intergovernmental immunity, which forbids states from discriminating against or directly regulating the federal government. But a neutral, nondiscriminatory state remedy that applies to “any person” who violates the federal Constitution neither discriminates nor targets legitimate federal actions.

Are State Damages Against Federal Officials Statutorily Preempted? Not Necessarily.

Another objection will likely be statutory — namely, that the Federal Tort Claims Act and the Westfall Act, federal statutes that generally provide the exclusive means of suing federal employees for torts, preclude state damages actions against federal officials. It’s true that the Westfall Act does preclude litigants from bringing many common-law state tort claims against federal officials. Converse 1983 proponents, however, have strong arguments that even if Congress has preempted most common-law torts against federal officials, states remain able to provide constitutional tort remedies. That’s because the Westfall Act includes a carveout for “a civil action against an employee of the Government . . . which is brought for a violation of the Constitution of the United States.”

The evidence is mixed on this score. The Supreme Court has sometimes referred to this statutory provision as a “Bivens” exception, implying that the carveout allows for Bivens suits but nothing else. And one federal circuit court recently concluded (with limited analysis and without receiving any on-point briefing from the plaintiff) that the Westfall Act precluded a converse 1983 claim brought under New Jersey law for that very reason.

But there are reasons to doubt this Bivens-only reading of the Westfall Act. While some Supreme Court cases have casually referred to that language as a Bivens exception, others have described the carve-out in more expansive terms. Particularly when paired with the Westfall Act’s legislative history, several commentators have contended that the act indeed allows for state actions that seek relief for federal constitutional violations. As Judge Justin Walker of the U.S. Court of Appeals for the D.C. Circuit detailed in a comprehensive 2023 concurrence, “that reading finds support in the text of the statute” and “accords with Founding-era principles of officer accountability.” There are, accordingly, persuasive arguments that the Westfall Act leaves the door open to converse 1983 claims.

A Forgotten, but Familiar, Role for States

Over recent decades, statutory and doctrinal changes at the federal level have increasingly left individuals unable to obtain meaningful relief when federal officials violate their constitutional rights. But the duty to enforce the federal Constitution does not belong to the federal government alone; from the Founding era until recent times, states played a crucial role in vindicating constitutional rights. Converse 1983 seeks to revive that tradition — and assure meaningful relief to those harmed by unconstitutional abuses of federal power. Although the permissibility of converse 1983 actions will no doubt be vigorously contested, there are forceful legal arguments in their favor.

Harrison Stark is Senior Counsel, Director of Special Projects at the State Democracy Research Initiative at the University of Wisconsin Law School.