Mike Fox
The legal plights of George Retes and René Quiñonez exemplify a modern American tragedy—not of criminal conduct, but of a jurisdictional architecture methodically engineered to insulate federal agents from accountability. Their experiences demonstrate how federal agents can violate our constitutional rights only for victims to later discover that the very safeguards intended for their protection have morphed into a wall of immunity.
For George Retes, a US citizen and disabled Army combat veteran, the remedy-free zone of American justice became a shocking reality. While commuting to his job as a security guard in his native Ventura County, California, ICE agents shattered his car window, temporarily blinded him with pepper spray, and forcibly removed him from his vehicle. Retes was then detained for three days—without access to counsel, his family, or medical care—only to eventually be released without charges.
He sought justice, only to find the courthouse doors slammed shut, locked by a single, arbitrary fact: his assailants were federal agents.
René Quiñonez, an Oakland business owner, encountered a similar barrier. In 2020, US Postal Inspection Service officers seized thousands of his “Black Lives Matter” face masks without a warrant or probable cause, targeting both his livelihood and his protected speech. Like Retes, Quiñonez’s pursuit of a day in court revealed a stark systemic truth: when federal agents violate your constitutional rights, you are largely left without a remedy.
Nevertheless, where the federal government has created a vacuum of accountability, a bold theory suggests the states can fill it. The outcome for both Retes and Quiñonez may ultimately rely on a blueprint proposed by Professor Akhil Amar known as Converse-1983.
This theory flips the script. It posits that states are co-guarantors of the Constitution. Just as Congress can legislate to hold state actors accountable, Amar argues that states have inherent authority to provide remedies in state court that hold federal officials accountable. By using California’s Tom Bane Civil Rights Act, Quiñonez and Retes are attempting to reclaim an ancient principle: that for every right violated, the law must provide a remedy.
To appreciate the current landscape of federal accountability, one must look to the 1988 Supreme Court decision in Westfall v. Erwin. The case addressed a fundamental dilemma: when a federal employee causes harm, who is held responsible? Under the doctrine of sovereign immunity, the United States government generally cannot be sued without its consent. Historically, this left victims with only one target: individual federal employees.
In Westfall, the Court narrowed the circumstances under which a federal official could claim immunity from state-law tort claims. The justices held that a federal official is only immune if they were acting within the scope of their employment and in a discretionary (independent judgment) rather than ministerial (following a prescribed rule) manner. Congress felt that this opened rank-and-file workers like mail carriers to personal liability for simple mistakes—like causing a fender bender.
Fearing a mass exodus of federal workers, Congress swiftly passed the Federal Employees Liability Reform and Tort Compensation Act, commonly known as the Westfall Act. While ostensibly intended to protect federal workers from negligence suits, the Westfall Act has been construed so broadly that it now generally functions as the “exclusive remedy for tortious conduct of federal employees acting within the scope of their employment”—including egregious intentional torts. The Act established a process whereby if the Attorney General certifies that an employee was acting in the scope of their employment, the individual employee will be dismissed from the suit entirely. The United States is then substituted as the defendant, and the case is removed to federal court, where it proceeds under the Federal Tort Claims Act (FTCA)—a statute rife with exceptions.
Fortunately, the Westfall Act contains a single, vital crack: a provision explicitly stating that it does not apply to constitutional violations committed by federal employees. In fact, the Act was intended to affirmatively preserve state-law claims brought to redress federal constitutional violations. Accordingly, faithful adherence to the statutory text would have left the door wide open for René Quiñonez’s claim under California’s Tom Bane Act. Instead, the district court slammed it shut.
To understand why Quiñonez faced such a wall of opposition, we must look at the double standard baked into American accountability. The American legal landscape is split by a frustrating divide. When a state or local official violates your rights, the path to justice is—theoretically—a paved statutory highway. In 1871, following the Civil War, Congress built this road by enacting Section 1983 to ensure that those acting under color of state law could be held responsible. Over the past five decades, however—in contravention of clear congressional commands—the Supreme Court has littered this highway with immunity doctrines, forcing victims to identify a nearly identical past case just to keep their suit alive.
But for those harmed by federal agents, even a cluttered highway would be a luxury. In the federal sphere, no such statutory road exists. Instead, victims must rely on a narrow, judicially invented bridge known as Bivens. Exactly a century after Congress enacted Section 1983, the Supreme Court rightly recognized that rights without remedies are no rights at all, allowing a thin sliver of suits against federal officials for constitutional violations to proceed. But unlike the sturdy foundation of Section 1983, the Bivens bridge has been left to atrophy for fifty years, as the justices have repeatedly limited its application and refused to extend its reach to new contexts—including immigration enforcement.
In the Quiñonez case, the district judge incorrectly held that the constitutional exception in the Westfall Act is actually a tiny, locked door that only opens if you already have a valid Bivens claim. Because Bivens has been pared down to near irrelevance, this ruling functions like a high-stakes legal trap. The government can argue that the constitutional exception—the very provision intended to allow citizens to sue agents who break the law—is a hollow shell that exists only if a Bivens remedy is already available. Unfortunately, since the Supreme Court has already ruled that no Bivens remedy exists, the exception then vanishes entirely.
The circle is closed, and the result is a legal black hole. The victim is barred from state court by the Westfall Act and barred from federal court by the death of Bivens. In this narrative, a federal agent can violate your rights with total impunity, leaving you largely without a path to the courthouse.
But this logic is deeply flawed. In an amicus brief filed with the US Court of Appeals for the Ninth Circuit in support of Mr. Quiñonez, several prominent law professors point out that the Constitution’s structure relies on a system of dual sovereignty. While skeptics like University of Richmond Law Professor John Preis argue that the federal government possesses formidable counter-weapons, including federal preemption and removal power, the professors counter his skepticism and explain that because “governments may not reliably right the wrongs of their own officials, the system counts on the federal government and the states to check one another.” State-law remedies merely provide a way to enforce existing federal rights; an unconstitutional act is, by definition, outside the scope of lawful authority.
Ultimately, building a truly comprehensive accountability mechanism requires Congress to intervene by expanding Section 1983 to encompass federal actors and sweeping away the debris of judicially confected immunity doctrines. Until then, the rise of Converse-1983 actions is more than a clever legal maneuver; it is a vital return to a jurisprudence rooted in the Constitution’s original understanding. It reaffirms that constitutional rights are not hollow promises and that states—as co-guarantors of liberty—possess the inherent power to ensure no official stands above the law. Yet, this state-based approach remains inherently fragile. It creates a “justice by geography” crisis where a remedy depends entirely on where an offense occurs.
In an era of federal paralysis, the burden of enforcement has shifted to the statehouse, but until a national standard is restored, the keys to justice will remain scattered across fifty different jurisdictions.