Constitutional rights are at the center of FBI agents’ lawsuit

A group of fired FBI agents is going after their own former agency in a lawsuit that could have ramifications across the federal government. A dozen former agents brought a suit alleging that the FBI illegally fired them for kneeling during a racial justice protest in 2020. The agents claim the firing was a violation of their constitutional rights, and the lawsuit comes as the FBI is already facing accusations of political motivations.

Lawsuit against the FBI’s top brass

The lawsuit comes five years after the defendants were photographed kneeling during a June 2020 rally in Washington, D.C., related to the then-ongoing George Floyd protests. The agents in question have said they “kneeled not to reflect a left-wing political point of view, but rather to de-escalate a situation that threatened to spin out of control,” said NPR.

Despite their assertions, the agents were fired earlier this year at the start of the second Trump administration. Their firing “violated their First Amendment rights to free association, including non-association, and Fifth Amendment rights to due process; were taken in violation of the separation of powers, without any constitutional authority; and are a legal nullity,” the lawsuit alleges.

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The lawsuit further alleges that FBI Director Kash Patel “began working to terminate all agents that had kneeled” almost “immediately upon becoming director of the bureau,” said Politico. It claims the agents would “not have been fired had they had the same perceived political affiliations” as the people who participated in the Jan. 6, 2021, insurrection at the U.S. Capitol.

An ‘unusual’ case

The fired FBI agents were not from a single unit, but spanned several branches of the agency, including “counterterrorism specialists and agents with more than 15 years’ experience in combating criminals,” said CBS News. The lawsuit cites Patel’s 2023 book, “Government Gangsters,” in which the now-FBI director wrote that “some government employees should ‘be removed from their posts and replaced with people who won’t undermine the president’s agenda,’” said CBS. The civil suit is just one of many “alleging Patel is engaged in political retribution at America’s top law enforcement agency.” The FBI has not commented on the litigation.

Experts say the lawsuit “may not ultimately hinge on First Amendment claims, considering that the complaint says the agents’ actions were not meant as political statements but that they were interpreted as such by the administration,” said USA Today. Because the suit alleges the agents were fired in retaliation by the Trump administration, it’s a “much harder case to win” on First Amendment grounds because it “requires proving what’s inside someone’s head,” attorney Brett Nolan of the Institute for Free Speech told USA Today.

The government is allowed to “restrict employees’ speech while performing official duties during work hours without violating the First Amendment,” said USA Today. But First Amendment claims aside, the lawsuit “focuses on due process and an alleged failure of the FBI to follow its internal disciplinary rules, which may well determine the outcome,” said Ken Paulson, the director of Middle Tennessee State University’s Free Speech Center, to the outlet. This makes it a particularly “unusual” case.