Bivens May Be a Thing of the Past With New Supreme Court Case

The Fourth Amendment to the U.S. Constitution unequivocally states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….” (Emphasis added). Several other constitutional amendments are equally clear in dictating what the government “shall” and “shall not” do. So what happens when the government violates these constitutional rights? Until the Supreme Court’s 1971 decision in Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics, the answer was pretty much nothing.

Bivens authorized citizens to file lawsuits against federal agents for violating their constitutional rights.

The Bivens Court held that a federal agent’s violation of a constitutional right may give rise to a cause of action for damages. In that case, agents of the Federal Bureau of Narcotics entered a man’s apartment. Then they arrested him for allegedly committing narcotic-related crimes. The agents “manacled” the man in front of his family and threatened to arrest the whole family. They also searched the apartment and took the man to a federal courthouse in Brooklyn for processing.

Eventually, the man sued those federal agents. He claimed that his arrest and the search of his apartment violated his Fourth Amendment rights. The federal district court dismissed the lawsuit. The circuit court of appeals affirmed. Both courts concluded that the man’s lawsuit failed to state a viable cause of action. Put more simply, the two courts agreed that citizens cannot sue federal agents who violate their constitutional rights.

Roughly 25 years earlier, the United States Supreme Court had “reserved the question of whether violation of [the Fourth Amendment] by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct” in a 1946 case called Bell v. Hood. In Bivens, the Supreme Court answered that question: “Today we hold that it does.” Specifically, the Court held that a citizen “is entitled to recover money damages for any injuries he has suffered as a result of the agents’ violation of [an] Amendment.”

Bivens has long faced criticism, but that criticism has historically recognized the need for a remedy.

From the outset, Bivens faced criticism. Then-Chief Justice Warren E. Burger dissented, arguing that the solution to the issue of enforcing your Fourth Amendment rights was a legislative one for Congress and state legislatures, not the judiciary. “We would more surely preserve the important values of the doctrine of separation of powers—and perhaps 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,” he wrote.

Justice Burger also recognized a problem. Without the ability to file a lawsuit against the officers, what would deter federal agents from committing constitutional violations? On a theoretical level, he explained, “suppression of evidence in these circumstances was imperative to deter law enforcement authorities from using improper methods to obtain evidence.” If prosecutors can’t use the unconstitutionally obtained evidence, that logic goes, police won’t obtain the evidence in such a way.

“But,” the justice continued, “the hope that this objective could be accomplished by the exclusion of reliable evidence from criminal trials was hardly more than a wistful dream.” As he recognized, the suppression “rule does not apply any direct sanction to the individual official whose illegal conduct results in the exclusion of evidence in a criminal trial.” Indeed, he continued, “the prosecutor who loses his case because of police misconduct is not an official in the police department” and “can rarely set in motion any corrective action or administrative penalties.”

For 50 years, Bivens has controlled. But a new Supreme Court case asks the Court to end it for good.

Despite the criticism, Bivens has remained good law for more than 50 years. And, regardless of whether you believe it was a necessary decision or the product of judicial activism that cannot stand, it’s hard to imagine anyone disagreeing that the decision serves a vitally important purpose. Justice Burger’s words from his dissent in the case explain why. There is absolutely a “need for some remedy to give meaning and teeth to the constitutional guarantees against unlawful conduct by government officials.”

As Protect Democracy argues, Congress could fill the void left before Bivens quite easily. It could enact a statutory Bivens remedy to make it clear that individuals are entitled to recovery for injuries caused by a federal official’s violation of their constitutional rights. Congress could also enact a law that eliminates qualified immunity for both federal and state government officials. And it could pass a law that gives plaintiffs standing to challenge government conduct when they have a reasonable basis to believe that the government violated their constitutional rights. Or it could consider a number of other proposals.

But Congress hasn’t done that. And, likely as a result of recent comments from the conservative Supreme Court justices in separate opinions, a Border Patrol agent is asking the Supreme Court to overrule Bivens outright in a case called Egbert v Boule. According to the agent’s petition, his case is the “optimal” opportunity to reverse this half-century-old precedent. “If Bivens has not survived into the modern era, this Court should say so.”

The circumstances of Egbert illustrate what overruling Bivens would mean for citizens’ interaction with the federal government.

In Egbert, a Border Patrol agent, Erik Egbert, reportedly learned that a bed-and-breakfast owner near the Canadian border was “smuggling” people into and/or out of the United States. Egbert learned that a Turkish national planned to arrive at the bed-and-breakfast in March of 2014. He also suspected that the Turkish national might enter the United States with a criminal purpose.

Ordinarily, if a law enforcement officer wanted to arrest or search someone, they’d seek a warrant. But not Egbert. He simply waited for the Turkish national to arrive at the bed-and-breakfast, followed them up the driveway and got out. When the bed-and-breakfast owner told Egbert to leave, he refused, shoved the owner aside, and questioned the Turkish national. The owner eventually sought medical treatment for the injuries caused by Egbert. The bed-and-breakfast owner reported Egbert’s conduct to his supervisors. In retaliation, he alleged, Egbert convinced the IRS to investigate him, too.

Ultimately, the bed-and-breakfast owner filed suit against Egbert. He sought recovery under Bivens for violations of his First and Fourth Amendment rights. The U.S. Court of Appeals for the Ninth Circuit let both claims move forward. But now Egbert asks the Court not only to reverse the Ninth Circuit for purposes of his case. He also asks the Court to abandon Bivens altogether.

Without Bivens, federal agents are largely free to violate constitutional rights without any personal consequences.

The Supreme Court could do so. If they do, citizens facing constitutional violations by government officials would land in the same spot the bed-and-breakfast owner in this case: simply out of luck. A federal officer could search your home or arrest you in violation of the Fourth Amendment. If they did, you would have no recourse barring intervention from Congress or your state legislature.

Instead, the only “consequence” potentially occurs in a subsequent criminal proceeding if a court suppresses the unconstitutionally found evidence. But, if you don’t face criminal charges, those Fourth Amendment rights have virtually no value at all. Of course, in theory, suppressing the evidence in a potential criminal case has some deterrence effect.

“But,” as Justice Burger recognized a half century ago, “the hope that this objective could be accomplished by the exclusion of reliable evidence from criminal trials was hardly more than a wistful dream.” The current compilation of the Supreme Court could decide that this “wistful dream” is good enough.