Federal and State prosecutors have two jobs. To prosecute wrong doers and to defend their respective employers when the wrong doers are their employees. In a case that is going to go before the supreme Court, Byrd v. Lamb docket # 21-184, where the question on hand is whether, under either step of the Abbasi test, line-level federal officers may be sued for violating the Fourth Amendment, the outcome of this case is either going to strengthen or weaken the protections of qualified immunity for federal agents.

The case revolves around how some federal agents can go rogue, read the synopsis below:

On the morning of February 2, 2019, Kevin Byrd was trying to drive out of a parking lot in Conroe,
Texas, when a Department of Homeland Security (“DHS”) agent Ray Lamb stepped in front of Byrd’s
moving car, preventing Byrd from leaving and detaining him until local police arrived. Pet. App. 2a–3a, 53a. Though Lamb knew that Byrd had committed no crime, the agent pointed a gun at Byrd, tried to smash his driver’s side window with a gun, and threatened to “put a bullet through his f—king skull” and “blow his head off.” Id. at 2a. Lamb then pulled the trigger. Id. at 56a. The gun jammed. Ibid. When police arrived, Agent Lamb showed them his DHS badge, leading the police to detain Byrd for several hours. Pet. App. 2a–3a. The police did not release Byrd until they reviewed security footage of the parking lot,1 which confirmed Byrd’s innocence. Id. at 3a.

Agent Lamb was not on official business, he was acting on a personal issue. A family matter that involved his son where someone was driving drunk and another person was injured. In this case Agent Lamb’s son was the accused drunk driver and a friend of Mr. Byrd was the person injured. Mr. Lamb was sued by Mr. Byrd where Mr. Byrd won in District court but lost on appeal in the Court of Appeals.

Because Mr. Lamb was not acting on official business, he is not represented by the U.S. Attorney’s Office. Had he been on official business, his defense attorney would have been the U.S. Attorney’s office. The same U.S. Attorney’s Office that would have to investigate Mr. Lamb for wrong doing and either find him in violation or having acted in good faith. The problem is that type of behavior couldn’t reasonably be defended unless Mr. Byrd had a weapon of his own and was in the process of committing a crime, which he wasn’t. Here is where it gets tricky, finding Mr. Lamb in flagrant violation of his sworn duties would open the federal government to a lawsuit, finding that Mr. Lamb did nothing wrong insulates the government from any monetary damages. The problem lies in that given the alternative, the government will almost always find their employees not in violation thus shielding them from prosecution and civil litigation. It’s cheaper that way.

That dual role as prosecutor and defense lawyer puts the people, the taxpayers that pay the salaries of the U.S. Attorney’s office, at risk. The U.S. Attorney’s office has a sworn duty and oath to protect the citizenry, but seemingly not at the peril of costing the government money. So how can you protect the citizens from rogue actors and at the same time keep your oath? You can’t. If your job as defense lawyer comes before your job as prosecutor, then you have a conflict of interest that can’t be overcome. The way to solve it is to remove some of the qualified immunities that come with being a federal agent and a police officer. If the behavior is so egregious that any reasonable person would find for the plaintiff, then the government should play the role of prosecutor and not defense lawyer.

In the case of Byrd v Lamb, as I play amateur judge and sleuth, it seems simple. The Supreme Court will most likely find in favor of Mr. Byrd because qualified immunity is only applicable when you are working a case and not on your own personal time. The case will overturned and sent back to the lower court, but I am wrong more times the the NY Mets lose, so, I hope Mr. Byrd gets his due and rogue agents like Mr. Lamb take heed, but chances are Mr. Lamb might walk, on the civil charges anyway.

The real problem is if the people that go rogue are in the U.S. Attorney’s office. Without the explicit consent of the U.S. Attorney, no one can prosecute them. That’s a whole new ball game. That scenario is likened to a doomsday scenario. In short, The King’s men should not be more powerful than the King himself. Their should be accountability.

This isn’t a great blarticle or great example on how this hypocrisy plays out, their are better ones but it will do for right now.