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BAD NEWS FOR BIVENS

Everyone knows that the 1971 Supreme Court case Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics established a private person’s right to sue federal officials for violation of one’s constitutional rights. What everyone does not know is that Bivens continues to be under assault.

Congress in its wisdom enacted a statute, 42 USC 1983, that permits a private person to sue an agent of a state or local government (like the crazy cops who wanted to shoot a shoplifter) for violating the victim’s constitutional rights. But Congress did not authorize a private person to sue a federal agent or official for doing the same thing. This created a weird dichotomy: if the local fuzz kicked down your door and terrorized you in a drug raid (when the warrant was really for a house one block away) could be sued, but if the same act was committed by a SWAT-truckload of DEA agents, you were out of luck. Some 48 years ago, this struck the Supreme Court as just plain wrong, so the Court decided that the Constitution implied the right to bring the same suit against the Feds that Sec. 1983 allowed one to bring against the local cops.

My take, for what it’s worth: the Constitution says things. It does not imply things. Bivens is just plain wrong. But the Court was right that there ought to be such a right. I’m a big fan of allowing citizens (and non-citizens, too, thinking about Mexican kids playing in the Rio Grande who get shot by DEA agents just for fun) the right to enforce their constitutional rights when government actors violate them. But pretending that the Constitution implicitly authorizes whatever right is flavor of the day is a slippery slope. Implication eventually makes the Constitution little more than a reflection of the will of the majority.

A few years ago, Yaz Farah and a bunch of his friends were indicted for forcing minor females to engage in prostitution. No question, such conduct is horrific, or would be horrific if it really happened. In Yaz’s case, a federal prosecutor convinced a jury that it did happen, and Yaz and most of his buddies were convicted.

But the district court threw out the verdict due to manifold Brady violations (that is, the prosecution possessed evidence that Yaz and his friends did not do it, but hid that evidence from the defense), as well as the trial judge’s strong suspicion that the lead investigator made up a lot of the story to which she had testified. The 6th Circuit upheld the dismissals, blasting the investigator, St. Paul cop Heather Weyker (who had been deputized as part of an FBI Task Force), as an out-and-out liar.

Yaz and his friends sued Heather under Bivens for her false testimony, fabricated evidence and conniving, all of which had left some of them jailed for three years awaiting trial on bogus charges. However, last week, the 8th Circuit reluctantly threw out Yaz’s Bivens claim in an opinion that began as follows:

If a federal law-enforcement officer lies, manipulates witnesses, and falsifies evidence, should the officer be liable for damages? We hold that the Constitution does not imply a cause of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), so the answer must come from Congress, not from us. And Congress has, so far, answered no.

The problem is that the Supreme Court has recognized an implied a private right to sue the government in only three cases (and has recently tried to crank back the reach of Bivens). The first was in Bivens itself: a 4th Amendment remedy for a warrantless search. The second was in Carlson v. Green (cruel and unusual punishment resulting in a prisoner death), and the third in a gender discrimination claim against a Congressman by a former aide. “Since then,” the 8th Circuit said, “the Court has become far more cautious and has, in fact, consistently refused to extend Bivens to any new context or new category of defendants’” for almost forty years. Recognizing that the Bivens inquiry is about “who should decide” whether to create a new cause of action, the 8th said, the Supreme Court has answered “most often . . . Congress.”

Here, the Court ruled that the police officer’s misconduct, while shocking, was not similar to any of the three forms of Bivens claims that had been permitted. Letting the action go forward “would require courts to interfere in an intrusive way with sensitive functions of the Executive Branch,” whether Congress has taken other action in the area without authorizing a damages remedy, and whether a “remedial structure” is already in place to address constitutional violations, even if it does not go as far as a Bivens remedy would. When factors like these are present, the 8th Circuit said, the Supreme Court has explained that it is “less probable that Congress would want the Judiciary to entertain a damages suit.”

Until Congress creates a federal remedy similar to the 42 USC 1983 remedy against state agents and officers, Yaz’s damages will go without a remedy.

Farah v. Weyker, 2019 U.S. App. LEXIS 17566 (8th Cir. June 12, 2019)

– Thomas L. Root

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