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Meese Changes Policy but Opponents Fear Loss of Deterrent : Federal Agents to Be Reimbursed in Suits Over Actions

August 13, 1986|RONALD J. OSTROW | Times Staff Writer

WASHINGTON — Frustrated by Congress' refusal to act, Atty. Gen. Edwin Meese III has reversed long-standing policy to allow the reimbursement of FBI and federal drug agents, U.S. marshals and other Justice Department employees who lose court judgments over actions taken in the line of duty, it was learned Tuesday.

The decision, reached without fanfare late last month, seeks to still fears of agents who hesitate to take "reasonable" actions against suspects and others that might lead to suits against them, department officials said.

Spokesmen for federal law enforcement agencies hailed the shift in policy for lifting what they regard as a burdensome cloud, but the chairman of a House Judiciary oversight panel and an American Civil Liberties Union official said the new policy could remove a strong deterrent to lawmen tempted to overstep their authority.

Calls Policy Discretionary

Gregory S. Walden, an associate deputy attorney general, noted that the policy of indemnifying department employees who suffer adverse money judgments for official acts is "discretionary--not mandatory--and does not remove the burden (from employees) of facing lawsuits." The attorney general would decide which judgments to pay, based on the circumstances involved.

The federal government is most concerned about the fear of lawsuits "because it is this concern which affects governmental operations, decision-making and policy determinations," the department said in detailing the policy in the Federal Register.

Fear of personal liability and uncertainty over what actions may result in a lawsuit "tend to intimidate all employees, impede creativity and stifle initiative and decisive action," the department said.

Presidents Seek Legislation

Both the Carter and Reagan administrations have backed legislation that would substitute the United States as a defendant in suits brought against federal employees for actions taken within the scope of their employment--a much broader change that would cover all federal workers.

But the legislation "is just not getting anywhere," Walden said. "This Administration believes we should no longer hold federal employees hostage to a good government reform that is not getting anywhere."

Rep. Don Edwards (D-San Jose), chairman of the House Judiciary subcommittee on civil and constitutional rights, contends that the legislation and Meese's policy shift removes an

'The Public Suffers'

"Most people in the United States know if they violate a person's rights, they can be sued," Edwards said in an interview. "If you take that away, the public suffers." Before changing the policy, Walden noted, Meese asked his office of legal counsel for an opinion on his authority to indemnify.

The opinion, which was not made public, concluded that there is "a logical connection between the achievement of the department's law enforcement responsibilities and protecting the department's employees from financial liability for actions taken to meet those responsibilities," Walden said.

During the Carter Administration, the office of legal counsel came to a similar conclusion, Walden said. But apparently the decision was made not to change the policy and to push for the broader legislative reform instead.

Stems from High Court Case

Concern by federal employees about personal lawsuits over their official acts stemmed from the Supreme Court's 1971 decision that they can be held personally responsible for violating an individual's constitutional rights.

Since then, Assistant Atty. Gen. Richard K. Willard said, there have been more than 12,000 so-called "Bivens" claims--named for the 1971 case, Bivens vs. Six Unknown Agents of the Federal Bureau of Investigation--filed against federal employees. Nearly 3,000 are pending, and the remainder resulted in only 32 actual judgments, he said.

Of these, only six have been paid, with the others under appeal. The payments have ranged from $150 to $16,666 in a soil conservation case, Willard said.

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