Many readers are familiar with a Section 1983 claim, which is the vehicle Congress created to bring constitutional claims against state officials. Until 1971, there was no equivalent for lawsuits against federal officials until the Supreme Court case Bivens v. Six Unknown Fed. Narcotics Agents.
Based on Bivens, individuals can sue federal officials for constitutional violations. The Supreme Court recently issued two important decisions regarding the scope of Bivens claims, and when federal officials should receive immunity.
Ziglar v. Abbasi
In Ziglar v. Abbasi, the Supreme Court ruled that six men detained after 9/11 could not bring claims for damages against senior government officials from the Bush Administration for designing detention policies.
This civil rights lawsuit was filed in 2002 on behalf of Muslim, South Asian, and Arab non-citizens detained by the INS and FBI in connection with the 9/11 investigation. The men were held in a federal detention facility in Brooklyn, where they claimed that guards allegedly slammed them into walls, broke their bones, referred to them as terrorists, subjected them to humiliating sexual comments, and insulted their religion.
The men sued former Attorney General John Ashcroft, FBI Director Robert Mueller, and head of INS James Ziglar alleging that they played a role in ordering racial and religious profiling and abuse in detention, in violation of the detainees’ rights under the First, Fourth, and Fifth Amendments. The former wardens and other Metropolitan Detention Center officials who oversaw this alleged abuse were also named in the case.
In a 4-2 vote, the Supreme Court held that it should be up to Congress to decide whether suits can be brought for monetary damages and that Bivens should only be expanded if the Court evaluates “special factors” and finds that a situation poses a circumstance where Bivens should be expanded. These factors include, but are not limited to: the rank of the officers involved, whether it was an emergency situation and whether there was guidance from prior cases in how to handle the situation, the constitutional right at issue, and whether court intervention would disrupt the role of government.
Based on this analysis, the Supreme Court made three key findings.
1) The Second Circuit was wrong when it held that Bivens claims could be brought against executive officials for purported harms resulting from their official detention policy.
The Court held that Bivens was meant to discourage illegal acts by individual federal officers and not stop illegal federal policies. Therefore, while the plaintiffs could have sued for injunctive relief, they could not sue high-level policy makers for money damages, as this would distract executive officials from making difficult policy decisions. Moreover, the Court indicated Congress had known about these allegations of abuse for a long period but had chosen not to create a cause of action.
2) The Second Circuit should have considered “special factors” before extending Bivens claims to the Warden.
The Supreme Court sent the case back to the Second Circuit and held that before letting Bivens claims extend to the Warden, the lower courts should have applied the “special factors” test to see if claims could be brought.
3) The Second Circuit should have dismissed the conspiracy (Section 1985) claims based on qualified immunity grounds.
Qualified immunity protects from suit, officials who did not violate clearly established law. Here, the Supreme Court held that it was not clear whether executive officials who were all part of a single department could be held liable for conspiracy. Conspiracy typically involves an agreement between different parties, and suing executive branch officials for conspiracy would discourage them from consulting one another in developing policies.
Writing for the majority, Justice Kennedy stated that the Supreme Court’s opinion should not be read to condone the alleged abuse. However, Justice Kennedy noted that there is “a balance to be struck, in situations like this one, between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the Nation in times of great peril.” Justice Kennedy also noted that “the proper balance is one for the Congress, not the Judiciary, to undertake.”
Hernandez v. Mesa
In Hernandez, the Supreme Court grappled with whether the family of a slain Mexican teenager could sue the federal border patrol agent who shot him across the U.S.-Mexico border for damages.
Adrian Hernandez’s parents brought a federal suit against the border patrol agent under Bivens, alleging Jesus Mesa violated their son’s Fourth and Fifth Amendment rights. The District Court had dismissed the suit, finding that the Constitution does not apply to a non-citizen, not on U.S. soil. This was affirmed by the Fifth Circuit who said that Officer Mesa had qualified immunity because he would not know that Hernandez had any constitutional rights due to his non-citizen status.
The Supreme Court avoided the issue of whether the Fourth Amendment applies to noncitizens located outside of the United States. The Court held that “[t]he Fourth Amendment question in this case . . . is sensitive and may have consequences that are far reaching.” This could include whether individuals could bring suit for things such as drone strikes or electronic surveillance abroad.
Instead, the Supreme Court reversed the lower court rulings and said that the Courts should look at the following issues:
1) Whether Hernandez’s parents can even bring a Bivens action in light of the Court’s ruling in Ziglar v. Abassi.
2) If the parents can bring a Bivens action, the Fifth Circuit should look at the merits of the case, and
3) Whether the officer is entitled to qualified immunity in light of the fact that Officer Mesa did not learn that Hernandez was not a U.S. citizen until after the shooting.
Ziglar v. Abbasi and Hernandez v. Mesa both show that before getting into the substance of constitutional claims against federal officials, plaintiffs suing for money damages must show that they have the standing to sue.