The Supreme Court’s Unconstitutional Role in Rights of Action Under Bivens vs. Six Unknown Named Narcotics Agents

On June 21, 1971, the Supreme Court held in Bivens v. Six Unknown Named Narcotics Agents that an implied right of action existed against federal officers for violation of one’s Fourth Amendment rights. [1] According to the court, the Constitution implied that individuals had a right to sue for monetary damages if they could prove that a federal official, acting under federal orders, subjected them to an unreasonable search or seizure. Bivens actions, then, provide an avenue for victims of constitutional violations to receive monetary redress for their grievances.  In the decade following the Bivens decision, the Court expanded the precedent to apply to infringements on the Fifth and Eighth Amendments, including individual’s rights against self-incrimination and cruel and unusual punishment, respectively, by rewarding damages in two other cases: Davis v. Passman (1979) and Carlson v. Green (1980).

However, the Court has since classified awarding Bivens actions as a “disfavored judicial activity” and rejected all subsequent claims on the grounds that the context or defendant category presented is “different in a meaningful way” from the three original cases that the Court allowed. On these grounds, the Court has refused to extend Bivens actions to other individual constitutional rights. [2] In the last five years, the Court has struck down two landmark cases that would have extended rights granted under Bivens to other intrusions on individual constitutional rights, regardless of the right being violated or the context in which the violation occurs. The Court’s decision pattern following the Bivens decision is concerning for two reasons. Firstly, it has severely curtailed the legitimacy and intended purpose of the Bivens precedent. Secondly, it has called into question the rightful role of courts in fashioning common law––which is derived from judicial decisions rather than legislature––regarding constitutional violations committed by federal officials. The Court’s increasingly staunch rejection of Bivens claims suggests that it should not be involved in determining rights of action for constitutional violations under Bivens at all, contravening the original precedent. 

In Bivens v. Six Unknown Named Narcotics Agents, plaintiff Webster Bivens alleged that agents from the Federal Bureau of Narcotics entered his home without a warrant and conducted a search of the premises that he believed violated his Fourth Amendment right against unlawful search and seizure. [3] The Court recognized his right to sue and held that federal law allows private individuals to sue federal officers for constitutional violations when the official is on the job. In the following decade, the Court also extended Bivens to Fifth and Eighth Amendment violations by upholding the precedent in Davis v. Passman (1979) and Carlson v. Green (1980), which concerned due process employment discrimination and medical care in prison, respectively. The Court’s affirmation of the right to monetary claims through these three cases clearly signaled an implied right of action for individuals to bring constitutional tort claims against federal government officials. This power previously only existed against lower-level actors through 42 U.S. Code § 1983, which guarantees civil action for deprivation of rights by state and local officials. 

Despite this, since the decision’s announcement, a majority of legal scholars have criticized the Court’s involvement in determining a federal common law right of action through Bivens. Chief Justice Warren Burger dissented on the grounds that the Court would be interfering with the intended separation of powers, suggesting that the Court would “get a better result by recommending a solution to the Congress as the branch of government in which the Constitution has vested the legislative power. Legislation is the business of the Congress, and it has the facilities and competence for that task—as we do not.” [4] Concern regarding the decision’s blurring of the lines between legislative and judicial power was a core criticism of the Court’s initial decision, and guided future efforts to limit the application of the Bivens precedent further.

Modern Supreme Court decisions have shaped the Bivens precedent such that the burden of proof rests more heavily on plaintiffs suing federal officers, rendering Bivens remedies broadly inaccessible to most individuals and claims. Because Congress has failed to provide another path for constitutional remedies, Bivens attributes the responsibility to provide damages solely to the judicial branch. However, since the Bivens, Davis, and Carlson cases, subsequent decisions have drastically narrowed the conditions for a successful Bivens claim to be brought forward. Namely, the Court recently rejected applying the Bivens precedent in Ziglar v. Abbasi (2017) against high-level executive officials acting under post-9/11 national security policy, and in Hernandez v. Mesa (2020) against a federal border patrol agent’s involvement in the cross-border shooting of a Mexican national. In both of these cases, the Court sided with the federal official instead of the victim. The Court’s decisions in recent cases reveal not only a lack of justice served to victims, but also the Court’s unwillingness to hold federal officials sufficiently accountable; judicial action failed to ensure due process and equal protection for plaintiffs. 

For example, the majority opinion for Ziglar v. Abbasi stated the Court’s reluctance to extend Bivens by placing substantial limits on Bivens action. The plaintiffs in Abbasi––six illegal male immigrants of Arab descent, five of whom were Muslim––had been detained for months under a “hold-until-cleared policy” by the Federal Bureau of Investigation (FBI) at a federal detention center after the terrorist attacks on September 11, 2001, because they had been considered aliens “of interest.” [5] During their detention, federal employees subjected them to “harsh and oppressive conditions and physical abuse.” [6] The plaintiffs sought redress against the defendants, who were “high-ranking officials,” including the United States Attorney General, the Director of the FBI, the Immigration and Naturalization Service Commissioner, and the wardens at the jail. Their suit was filed under the Bivens precedent to claim damages for Fourth and Fifth Amendment constitutional violations. [7] 

The Court subsequently ruled that a Bivens claim could not be awarded to the plaintiffs because of the presence of new context and special factors not present in Bivens, Davis, and Carlson, the initial three decisions. Ziglar created a two-pronged test to determine if plaintiffs were eligible for damages in their claims. [8] The Court defined meaningful divergences from the original precedent that would disqualify a case: 

If the case is different in a meaningful way from [the three Bivens claims] decided by this Court, then the context is new. Meaningful differences may include, e.g., the rank of the officers involved; the constitutional right at issue; the extent of judicial guidance for the official conduct; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors not considered in previous Bivens cases. [9] 

The Court’s rigid unwillingness to consider new circumstances or situations in Ziglar, which are bound to occur, reflects its purposeful limitation of Bivens. No two constitutional violation claims are exactly the same, particularly after a significant passage of time; the Court relies on this principle to avoid extending Bivens. 

Unfortunately, even in the face of egregious actions of misconduct by federal officials, the Court continues to restrict the reach of Bivens. With decisions such as Ziglar, the Court dramatically reduces the likelihood that federal officials are held accountable for their behavior and diminishes a victim’s right to seek redress of grievances, which is inherently unjust. For example, in Hernandez v. Mesa, Jesús Mesa, a Federal Border Patrol agent, killed Sergio Hernandez Güereca, a fifteen-year-old Mexican national, in a cross-border shooting. [10] Hernandez’s parents petitioned for redress under Bivens for violation of their son’s Fourth and Fifth Amendment rights. [11] In light of the restrictions presented in Ziglar v. Abbasi, the Court refused to extend Bivens claims because the cross-border shooting was meaningfully different from original Bivens claim contexts, and because of its implications on the separation of powers: extending Bivens to the claim in Hernandez posed a “risk of disruptive intrusion by the Judiciary into the functioning of other branches,” such as those of national and border security. [12] The ruling is unjust because it dismissed a cause of action for murder victims based on assumed risks of national security or border tensions, despite the Mexican government explicitly supporting the awarding of damages to the Hernandez family in the Court. Thus, had the Court awarded a claim to the plaintiffs, there would likely not have been any major disagreements or border tensions, as its majority had implied. 

More specifically, the Court’s decision in Hernandez v. Mesa ignores the fact that the Supreme Court stated in Ziglar v. Abbasi that a primary purpose of Bivens was to “deter the [individual] officer” instead of solely awarding damages to plaintiffs or restricting a federal agency. [13] This decision reflects a rejection of Bivens precedent: under the original Bivens ruling, only the location of and character of Mesa’s conduct should have pertained to the Court’s decision, and the context of the cross-border shooting itself should not have been considered at all. As per Abbasi, the context that should have been considered for a Bivens claim exclusively pertained to tortious conduct that occurred stateside, and therefore not to the injury sustained in Mexico in Hernandez. [14] Justice Ruth Bader Ginsburg affirmed in her dissent that a Bivens claim would have been maintained if the bullet had hit Hernández on the U.S. side of the border. [15] 

Hernandez v. Mesa thus contributes heavily to Bivens’ delegitimization. Firstly, the lack of extensions to other gross misconduct warns potential plaintiffs that their efforts may be worthless to courts because the court has so narrowly defined paths for justice to be served. Secondly, the Court’s fleeting comprehension and case-by-case interpretation of Bivens reflect decision-making based on non-precedential judgment from justices rather than based on clear, concise, and objective legal argumentation. Furthermore, there is constitutional precedent on the state level that accessible avenues for redress against government officials for violation of one’s constitutional rights can and should exist: the right to file for redress has been long codified as established law through legislation in many states. Yet on the federal level, as demonstrated by the Supreme Court’s decisions following Bivens, the opposite is true.

The Court’s failure to award claims to plaintiffs in both Ziglar v. Abbasi and Hernandez v. Mesa––both of which raised clear, exigent, and horrific violations of constitutional rights––display Bivens’ inefficacy as a constitutionally sufficient path for redress. Since the Court’s passage of the first three Bivens cases during the 1970s, it has refused to extend any more rewards for Fourth, Fifth, and Eighth Amendment violations in incredibly case-specific circumstances. It classified Bivens actions as a “disfavored judicial activity,” claiming the Court at the time of the initial decision had a different understanding of judicial purview than today. [16] This reduces access to remedies for injustices and limits the potential for holding federal officials accountable for their actions while acting “under the color of federal authority.” [17] 

This concept is unjust and directly undermines clearly established American constitutional values. The Court’s staunch unwillingness to act on this issue reflects a massive lack of constitutional responsibility and removes essential protections guaranteed to individuals under federal law. Because Bivens originally afforded the judicial branch with the power to award damages in light of constitutional violations and hold those in authority accountable, the Court’s rejection of it today reflects an inability to provide equal and adequate justice to victims. It is the government’s responsibility to mandate this. Thus, in order to restore and ensure the rights of action for individuals whose constitutional rights have been violated, as Bivens initially intended to do, Congress should follow the action of the states and codify the federal right for individuals to sue federal government officials for constitutional violations. It is not sufficient to rely on Common Law precedent so shaky and restricted that it no longer holds its intended purpose.

Edited by Rebecca Reyes

Sources: 

[1] Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 389 (1971).

[2] Ziglar v. Abbasi, 582 U.S. ___, 11, 3 (2017).

[3] Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 388 (1971).

[4] Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 412 (1971).

[5] Ziglar v. Abbasi, 582 U.S. ___, 3 (2017).

[6] Trina Realmuto, et. al., “Bivens Basics: An Introductory Guide for Immigration Attorneys,” National Immigration Litigation Alliance and American Immigration Council (2021): 9.

[7] Realmuto, et. al., 9.

[7] Ziglar v. Abbasi, 582 U.S. ___, 15 (2017).

[8] Ziglar v. Abbasi, 582 U.S. ___, 3 (2017).

[9] Hernandez v. Mesa, 589 U.S. ___, 1 (2020).

[10] Hernandez v. Mesa, 589 U.S. ___, 1 (2020).

[11] Hernandez v. Mesa, 589 U.S. ___, 2 (2020).

[12] Ziglar v. Abbasi, 582 U.S. ___, 17 (2017).

[13] Hernandez v. Mesa, 589 U.S. ___, 29 (2020).

[14] Hernandez v. Mesa, 589 U.S. ___, 29 (2020).

[15] Hernandez v. Mesa, 589 U.S. ___, 29 (2020).

[16] Ziglar v. Abbasi, 582 U.S. ___, 2 (2017).

[17] Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 409 (1971).