Tag Archives: bivens

Bear Hunting – Update for November 19, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SOME DAYS YOU GET THE BEAR…

billybear201119Billy Walters, convicted of insider trading charges in 2017, has filed a Bivens action against five law enforcement officials – including former SDNY US Attorney Preet Bharara – seeking a holding that his due process rights were violated when agents leaked confidential grand jury material to The Wall Street Journal and The New York Times, intended to “tickle the wire” by enticing investigation targets to implicate themselves on wiretaps. The leaks continued for more than a year, with 13 different stories about the investigation.

(A Bivens action, for those who are joining us late, is an action for money damages alleging that federal agents or employees violated one’s constitutional rights. It is so named for the case establishing the right – now rapidly being diminished – that case being Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), in which Mr. Bivens sued federal drug agents who kicked down his door, searched his apartment, and arrested him without a warrant for a drug crime that was never prosecuted).

Billy’s lawyers complained about the leaks at the time, but the US Attorney denounced the complaints as “false’’ and “baseless accusations that are undermined by the facts.’’ Only after the judge permitted Billy some discovery into there origin of the leaks did the US Attorney change his tune, admitting that a senior FBI agent had in fact leaked information and would be punished for it.

But evidence provided to the court showed that Bharara himself, along with a team of five other top prosecutors under him, were aware for two years that the FBI was leaking false information about Billy to the press. “While expressing outrage in selected emails shared with the court,” Forbes reported, “Bharara and his team appeared to do nothing to actually halt the activity.”  The FBI agent was severely lashed with a wet noodle, and retired with full benefits a few years later.

Billy’s judge expressed shock (although not enough shock to acquit Billy):

Mr. Walters is charged with, among other things, tipping material non-public information to another. And to help support that case, the special agent apparently tipped material non-public information improperly to another. That’s what we have here.

The 2nd Circuit later observed that the leaking of confidential grand jury testimony was “serious misconduct and, indeed, likely criminal’’ and “in some respects more egregious than anything Walters did.”

Billy’s complaint, filed by two law firms, seeks compensatory and punitive damages, and a declaration that Billy’s rights were trampled by the US Attorney and his minions.

Billy may have gotten the bear…

Real Clear Politics, Fighting Prosecutorial Leaks (November 11, 2020)

Forbes, Billy Walters Files Lawsuit Against FBI Leaker And US Attorney Team Who Covered It Up (October 30, 2020)

Complaint, Walters v. Bharara, Case 20cv8803 (SDNY Oct 22, 2020)

… AND SOME DAYS THE BEAR GETS YOU

Inmates cannot make a phone call without reading the writing on the wall (literally, it is painted on the wall above the phones in big letters, both English and Spanish) warning that phone calls are monitored and recorded.

Martin Shkreli, the original pharma bro (now a resident of FCI Allenwood Low), discovered that getting locked up wasn’t the end of his legal problems. The Federal Trade Commission sued a company he had run for anticompetitive conduct, and – with the cooperation of the BOP – got recordings of all of his inmate phone calls and emails.

martybear201119King Belshazzar was quite troubled by the handwriting on the wall, but Martin Shkreli is no King Belshazzar. so he talked freely on the inmate phones.  When the FTC told him it had gotten recordings of all of his inmate calls and emails – including communications with attorneys – from the BOP, Marty cried foul, arguing that he had an attorney-client privilege against disclosure, not to mention that the FTC’s possession of the records violated the Privacy Act.

The district court was unmoved. It ruled that under United States v. Mejia – 2nd Circuit precedent that holds an inmate has no expectation of privacy where all of the posted notices tell him otherwise – the court gave the FTC the go-ahead to use the material, except for a battle over four categories of documents. Last week, having rejected the Privacy Act argument, the court ruled that the FTC could use it all.

That should be a cautionary tale for inmates who don’t already believe those postings about calls and emails being monitored.

The bear got Marty…

Order, FTC v. Vyera Pharmaceuticals, LLC, Case 1:20cv706-DLC Dkt 308 (SDNY, November 10, 2020)

– Thomas L. Root

Bivens is Dead, Just Not Declared Dead – Update for July 21, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BIVENS, WE HARDLY KNEW YE


 critic200721Scott Callahan is serving a sentence for child pornography offenses. To pass the time, he took up painting. There is no doubt he built up a lot of self-confidence. Whether he developed skill to match is unclear. But what was clear is that he favored painting females in various states of undress or no dress at all. His work attracted followers, among them BOP officials who seized a number of his paintings, believing them to be more porn than art. Everyone’s a critic.

Scott sued his warden and other officials at his institution for violation of his 1st Amendment rights under Bivens v Six Unknown Federal Narcotics Agents. Bivens and two related cases were decided by the Supreme Court between 1971 and 1980, all of which recognized that people have an implied cause of action to sue federal officers for violations of their constitutional rights. Congress adopted a statute giving people the power to sue state and local officials for violation of constitutional rights, 42 USC § 1983. But Congress has adopted no similar statute giving people the power to sue federal officials for such violations. The Supreme Court reasoned that sometimes individual constitutional rights violations could be redressed only by damages, and the Court concluded in Bivens that it had the power to create such actions.

But that was then, and this is now. Since Bivens and its companion decisions were adopted, the Supreme Court has suffered “buyer’s remorse”, and has nearly gutted Bivens, as the 6th Circuit explained to Scott last week when it threw out his suit. “What started out as a presumption in favor of implied rights of action,” the Circuit explained, “has become a firm presumption against them. The Supreme Court has… repeatedly declined invitations, many just like Callahan’s, to create such actions… When asked’ who should decide’ whether a cause of action exists for violations of the Constitution,” the 6th held, the Supreme Court has repeatedly said “the answer most often will be Congress.”

childart200721The problem for Scott, the Circuit observed, “is not just that there has been a long drought since the Court last recognized a new Bivens action or even that the Court has cut back on the three constitutional claims once covered. What’s harder still is that the Court has never recognized a Bivens action for any First Amendment right, and it rejected a First Amendment retaliation claim decades ago for federal employees. There’s something to be said for leaving it at that and pointing out that the best idea for people in Callahan’s situation is to urge Congress to create a cause of action for constitutional claims against federal officials like the one used against state officials.”

It is fairly safe to say that, except in the narrowest of circumstances – such as when federal agents kick down your door by mistake – Bivens is dead.

Callahan v. BOP, 2020 U.S. App. LEXIS 22115 (6th Cir. July 16, 2020)

– Thomas L. Root

The Incredible Shrinking Bivens – Update for June 19, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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.

Oops, wrong house... If they're locals, sue 'em under 42 USC 1983

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.

The 6th Circuit was calling Officer Heather one... and in a big way.
The 6th Circuit was calling Officer Heather one… and in a big way.

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.”

shocked190619Here, 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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