Supreme Court grants immunity to nearly all federal officers who violate the constitution


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TLDR: The Supreme Court ruled that federal agents can only be sued for violating a person’s constitutional rights in an increasingly narrow set of circumstances—similar to qualified immunity, the court wants cases to exactly match the circumstances in the original Bivens case (which was brought against DEA agents). Wednesday’s opinion effectively leaves most federal law enforcement officers with absolute immunity from civil liability for even the most egregious constitutional violations.

To understand Wednesday’s Supreme Court ruling, you need to first understand what a Bivens claim is.

A Bivens claim is a civil rights lawsuit, brought by a plaintiff who alleges that their constitutional rights have been violated by a federal agent. The result of a successful Bivens action is usually monetary damages.


Bivens v. Six Unknown Fed. Narcotics Agents (1971) involved federal narcotics agents (predecessors to the DEA) who made warrantless entry into the Brooklyn residence of Webster Bivens, searched the apartment, and arrested him on drug charges.

The agents manacled petitioner [Bivens] in front of his wife and children, and threatened to arrest the entire family. They searched the apartment from stem to stern. Thereafter, petitioner was taken to the federal courthouse in Brooklyn, where he was interrogated, booked, and subjected to a visual strip search.

Bivens brought a lawsuit against the federal agents for violating his Fourth Amendment rights against unreasonable search and seizure, seeking $15,000 damages from each of them.

The Supreme Court ruled 6-3 that Bivens had a right to sue the agents for monetary damages. Justice William Brennan, Jr., writing for the majority, declared that “power, once granted, does not disappear like a magic gift when it is wrongfully used.” There must be a meaningful remedy to ensure that officers do not abuse this power.

That damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials should hardly seem a surprising proposition. Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty… [it is] well settled that, where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done…

Having concluded that petitioner’s complaint states a cause of action under the Fourth Amendment, we hold that petitioner is entitled to recover money damages for any injuries he has suffered as a result of the agents’ violation of the Amendment.

Over the following decade, the Court subsequently extended a Bivens remedy to violations of Fifth (Davis v. Passman) and Eighth Amendment (Carlson v. Green) rights.

Recent history

In 2016, the Supreme Court ruled 4-2 that Bivens claims do not extend to federal officials’ detention of non-citizens, even if such detention was abusive and extrajudicial. The case, Zigler v. Abbasi, was brought by Muslim, Arab, and South Asian immigrants who were detained and subjected to beatings and invasive searches in the pursuit of “national security” immediately following the September 11 attacks.

Pending a determination whether a particular detainee had connections to terrorism, the custody, under harsh conditions to be described, continued. In many instances custody lasted for days and weeks, then stretching into months…Pursuant to official Bureau of Prisons policy, detainees were held in “‘tiny cells for over 23 hours a day.’” Lights in the cells were left on 24 hours. Detainees had little opportunity for exercise or recreation. They were forbidden to keep anything in their cells, even basic hygiene products such as soap or a toothbrush… According to the complaint, prison guards engaged in a pattern of “physical and verbal abuse.” Guards allegedly slammed detainees into walls; twisted their arms, wrists, and fingers; broke their bones; referred to them as terrorists; threatened them with violence; subjected them to humiliating sexual comments; and insulted their religion.

Justice Kennedy, joined by Roberts, Thomas, and Alito, ruled that Bivens should be limited in scope.

Bivens, Davis, and Carlson were decided at a time when the prevailing law assumed that a proper judicial function was to “provide such remedies as are necessary to make effective” a statute’s purpose. The Court has since adopted a far more cautious course, clarifying that, when deciding whether to recognize an implied cause of action, the “determinative” question is one of statutory intent.

In other words, Bivens and its progeny are products of a no-longer popular legal school of thought. The majority no longer believes it is appropriate to use Bivens to allow claimants to seek damages where Congress does not explicitly outline that intent.

Justices Breyer and Ginsburg dissented (Sotomayor and Kagan recused due to previous work on the case):

The Court, in my view, is wrong to hold that permitting a constitutional tort action here would “extend” Bivens, applying it in a new context. To the contrary, I fear that the Court’s holding would significantly shrink the existing Bivens contexts, diminishing the compensatory remedy constitutional tort law now offers to harmed individuals…

A few years later the Supreme Court ruled that, just as expanding Bivens in Zigler would interfere with the executive branch’s national security authority, Bivens could not interfere with border security. The case, Hernández v. Mesa, involved a Border Patrol agent who shot and killed 15-year old Mexican boy Sergio Hernández without justification. At the time of the shooting, the officer, Jesus Mesa, was in U.S. territory, while Hernández was on Mexican soil. Mesa would claim that the boy was throwing rocks at him, thereby justifying the shooting, but a cellphone video of the incident indicated that was not true.

  • Watch Vice News’ recap of the case here, with video of the incident.

The majority, made up of Justices Alito, Roberts, Thomas, Gorsuch, and Kavanaugh, held that in the absence of Congress creating a damages remedy, the court cannot extend Bivens to foreign relations and border security issues.

As we have made clear in many prior cases, however, the Constitution’s separation of powers requires us to exercise caution before extending Bivens to a new “context,” and a claim based on a cross-border shooting arises in a context that is markedly new. Unlike any previously recognized Bivens claim, a cross-border shooting claim has foreign relations and national security implications. In addition, Congress has been notably hesitant to create claims based on allegedly tortious conduct abroad. Because of the distinctive characteristics of cross-border shooting claims, we refuse to extend Bivens into this new field.

Justice Ruth Bader Ginsburg wrote the dissent, joined by Justices Breyer, Sotomayor, and Kagan:

Rogue U. S. officer conduct falls within a familiar, not a “new,” Bivens setting. Even if the setting could be characterized as “new,” plaintiffs lack recourse to alternative remedies, and no “special factors” counsel against a Bivens remedy. Neither U. S. foreign policy nor national security is in fact endangered by the litigation. Moreover, concerns attending the application of our law to conduct occurring abroad are not involved, for plaintiffs seek the application of U. S. law to conduct occurring inside our borders. I would therefore hold that the plaintiffs’ complaint crosses the Bivens threshold.

Yesterday’s opinion

The Supreme Court further rolled back Bivens actions on Wednesday, writing that Bivens should be overruled altogether.

The case, Egbert v. Boule, originates from an altercation between a Border Patrol agent and a U.S. citizen at the Canadian border. Robert Boule, the owner of a bed-and-breakfast in Blaine, Washington, that abuts the border, was confronted by officer Erik Egbert on his property. Egbert wanted to check the citizenship and travel documents of a Turkish guest at the inn. Boule asked Egbert to leave, “but Egbert refused, became violent, and threw Boule first against the vehicle and then to the ground.”

Boule sued Egbert in federal court, alleging a Fourth Amendment violation for excessive use of force, after the Border Patrol failed to take action against the officer. The conservative majority of the Supreme Court ruled against Boule, finding that “Bivens does not extend to create causes of action for Boule’s Fourth Amendment excessive-force claim” despite it being similar in circumstance to the original Bivens case. A DEA officer (in Bivens) is too dissimilar from a Border Patrol officer (in Egbert), the majority reasoned.

Both Thomas, writing for the majority, and Gorsuch, concurring, wrote that Bivens itself should be overruled, effectively ending any possibility of holding federal officials accountable for violating constitutional rights.

Gorsuch: If the costs and benefits do not justify a new Bivens action on facts so analogous to Bivens itself, it’s hard to see how they ever could. And if the only question is whether a court is “better equipped” than Congress to weigh the value of a new cause of action, surely the right answer will always be no…In fairness to future litigants and our lower court colleagues, we should not hold out that kind of false hope, and in the process invite still more “protracted litigation destined to yield nothing.”

Thomas: Since it was decided, Bivens has had no shortage of detractors. And, more recently, we have indicated that if we were called to decide Bivens today, we would decline to discover any implied causes of action in the Constitution.

Justice Sotomayor, joined by Breyer and Kagan, dissented.

Existing precedent permits Boule to seek compensation for his injuries in federal court. The Court goes to extraordinary lengths to avoid this result: It rewrites a legal standard it established just five years ago, stretches national-security concerns beyond recognition, and discerns an alternative remedial structure where none exists. The Court’s innovations, taken together, enable it to close the door to Boule’s claim and, presumably, to others that fall squarely within Bivens’ ambit…

Absent intervention by Congress, CBP agents are now absolutely immunized from liability in any Bivens action for damages, no matter how egregious the misconduct or resultant injury. That will preclude redress under Bivens for injuries resulting from constitutional violations by CBP’s nearly 20,000 Border Patrol agents, including those engaged in ordinary law enforcement activities, like traffic stops, far removed from the border.

In summary, the Court’s ruling all but eliminates the public’s ability to sue nearly all federal officers who violate the Constitution.