A recent Supreme Court decision has struck the death blow to a legal precedent that had been a lifeline for prisoners experiencing abuse and other violations of their human rights. That precedent – Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971) allowed individuals to sue the federal government for a violation of constitutional rights.
The decision that gutted Bivens was issued in response to a suit brought by prisoner Andrew Fields, who was housed at USP Lee in Virginia at the time. He claimed that his Eighth Amendment rights had been violated by several BOP officers who punched him in the face, stomped on him, kneed him in the groin, shoved his face into a wall and slammed SORT shields in his back. Abuse like this in federal prisons is not unusual, and thus his case is of vital interest to everyone behind the wall and their families.
Fields first brought his action in district court, where it was thrown out. However, the Fourth Circuit Court of Appeals granted review, and the case ultimately found its way to the Supreme Court. And the highest court in the land slammed shut the door to government accountability first opened by Bivens.
This decision is infuriating and disheartening; we have lost one of the very few avenues for holding the BOP accountable for abuse that too often occurs. But instead of simply getting emotional, I want to put this ruling in an analytical context. To properly analyze this decision, I need to start at the beginning: the Bivens case.
The history of Bivens
Walter Bivens filed his suit after federal agents entered his apartment, used unreasonable force against him, searched his apartment and subjected him to a strip search. He claimed that the officers’ actions were a violation of his Fourth Amendment right to be free from “unreasonable searches and seizures,” and that he had suffered humiliation and mental anguish as a result. When reviewing the matter, five of the nine Supreme Court justices ruled that the suit was permissible due to the agents’ unconstitutional conduct.
Essentially, the Bivens ruling recognized an implied right of action for damages against federal officers (sued in their individual capacities) for violations of the Fourth Amendment. And that seems to have been the necessary ruling, right? Who doesn’t recoil from the news of law enforcement agents acting abusively and with impunity against citizens of this country? We need to be protected from such deceptive and abusive tactics.
But as straightforward as the Bivens decision may seem, a few of the judges dissented, pointing to the doctrine of separation of powers and saying such issues were Congress’ responsibility. (They also worried about an avalanche of such cases being brought and overwhelming the court.) Why? The answer lies in the language of the statute under which Bivens brought his action: 42 USC 1983, which does not apply to federal officials. The wording of 42 USC 1983 states, in part:
“Every person who, under color of any statute, ordinance, regulation, custom or usage,
of any State or Territory or the District of Columbia, subjects or causes to be subjected
any citizen of the United States, or other person within the jurisdiction thereof the
deprivation of any rights, privileges or immunities secured by the Constitution and laws
shall be liable to the party injured in an action at law…”
The concurring Bivens justices saw it as their duty to deter such constitutional violations by federal officials as well. In contrast, the opposing judges said the court did not have the power to extend the language of a Congressionally drafted statute.
The aftermath
It has been this tension between opposing statutory interpretations that has restricted the application of the Bivens ruling. In fact, the Supreme Court has extended the Bivens remedy in only two other contexts: a Fifth Amendment equal-protection claim for sexual discrimination in employment (Davis v. Passerman), and an Eighth Amendment claim against federal prison officials for failure to provide medical treatment (Carlson v. Green). And, each time, the court was reluctant to do so.
And then, in 2017, the court began to shut down Bivens actions. In Ziglar v. Abbasi, the Supreme Court stated that it felt the need for a far more cautious course before allowing any further implied causes of action. The court even called any additional Bivens expansions to be a “disfavored judicial activity.” All claims filed after Ziglar have been dead on arrival. It was clear that Congress would have to act to allow a filing for damages against federal officials.
In 1995, Congress enacted the Prison Litigation Reform Act (PLRA), codified at 42 USC 1997(e), providing – in theory – an avenue for prisoners to sue federal prison officials. However, it does not allow damages stemming from emotional and mental injury, as found in Bivens. Likewise, the PLRA does not extend to medical mistreatment, as found in Carlson. (When it was later called upon to analyze the PLRA, the Supreme Court concluded that the lack of supporting language in the act suggested that Congress did not intend for the right to sue to be extended to prisoner mistreatment beyond medical care.) In actuality, the act was designed to curtail “frivolous” litigation against federal officials.
The concept of qualified immunity governs here, protecting federal officials from being held accountable for their actions via litigation. Qualified immunity allows the government to step in as the defendant, in place of individuals, shielding them from personal liability. Although the PLRA does allow punitive damages to be awarded, the plaintiff must be able to prove, unequivocally, physical injury, caused in violation of a constitutional right.
Winning such cases is an uphill battle. Prison officials, prosecutors and courts tend to look out for their own. Add to that challenge the fact that most prisoners must file on their own, pro se, without the aid of an attorney.
The remaining avenues for justice
There is another avenue created by Congress that allows prisoner litigation against federal officials: the Federal Tort Claims Act (FTCA), codified at 28 USC 1346. It allows individuals to sue the U.S. government for injury or property damage caused by negligent federal employees. Unfortunately, a 2024 analysis of inmate lawsuits found that only about 1% of all prisoner civil rights claims were successful, even when represented by an attorney. While not specific to FTCA cases, this rate reflects the overall difficulty prisoners have in winning claims against the government due to procedural barriers like the Prison Litigation Reform Act.
That doesn’t mean justice can never be achieved. On February 6, 2024, the DOJ agreed to pay $700,000 to settle an FTCA claim filed by the father of Devon Gillians, who was killed by BOP corrections officers while held at FCI Coleman in Florida. (Robert Conyers Jr. first pursued litigation against the BOP and the officers under Bivens. When it was dismissed, he filed under the FTCA.) The ultimate question is: Why must someone die at the hands of abusive officers before there is any chance of justice and accountability?
Meanwhile, while the FTCA is clearly nowhere near as effective as what was offered by Bivens, Davis and Carlson, the fact that it is available was enough for the Supreme Court to leave “Bivens where it stands” (gutted).
This, unfortunately, is a fact of life within our nation’s prisons. Overzealous and psychotic corrections officers abuse their power over prisoners, and rarely suffer any consequences – just as overzealous and psychotic police officers abuse their power. Yet no one takes notice until the worst outcomes occur.
The Supreme Court has hammered the final nail in the coffin of Bivens. Bivens Is dead. But those of us in the struggle have a responsibility to remain diligent. It is our responsibility to keep pushing and maximize the narrow avenues available to us. It is within our power to learn those procedures and put the officers in charge on notice.
In the meantime, it is time for our supporters to shift our focus from the court to Congress. This is where we can and must make our stand by advocating for comprehensive legislation that removes the shield of qualified immunity and makes the threat of personal liability real for abusive federal officials.
Stay standing, brothers and sisters. Keep the struggle alive. Palante. Siempre palante.
Cases cited:
Bivens, 403 U.S. 91 S.Ct. 1999, 29 L.Ed 2d 619 (1972)
Davis v. Passerman, 442 U.S. 228, 248-49, 99 S.Ct. 2264, 60 L.Ed 2d 846 (1979)
Carlson v. Breen, 446 U.S. 14, 19-23, 100 S.Ct. 1468, 64 L.Ed 2d 15 (1980)
Ziglar v. Abbassi, 582 U.S. 120, 137 S.Ct. 1843, 198 L.Ed 2d290 (2017)
Conyers v. Ayers, 2023 U.S. Dist. LEXIS 125307 July 20, 2023 (11th Cir. 2023)
