Constitution Daily

Smart conversation from the National Constitution Center

Webster Bivens’ story – an update after a half-century

October 12, 2016 by Lyle Denniston


Lyle Denniston, Constitution Daily’s Supreme Court correspondent, looks at the connection between two cases accepted by the Supreme Court on Tuesday and a landmark decision in 1971 about the right to sue federal officials.courtfreize535Almost 51 years after federal narcotics agents humiliated Webster Bivens in front of his family after entering his Brookyn, N.Y., apartment without a warrant (and later strip-searched him in a federal courthouse), the Supreme Court is going to look deeply into the constitutional revolution he set off, and may actually shut it down, or come near to doing so.

Bivens is one of those historic figures who has given their names to a massive victory in the Supreme Court, but he also is one who did not get much out of it personally.   Bivens finally settled his $15,000 damages claim against those narcotics agents for $1,000 (his version) or $500 (the agents’ recollection).  But he did set off a half-century of pondering by the Supreme Court of one of those ultimate questions of law: Does every constitutional violation deserve a remedy?

The last time the court allowed anyone to seek the remedy that Bivens had gained was in 1980.  It has repeatedly denied it in various situations since then, and has several times told lower courts to approach with great caution any plea to allow it in any new setting.

On Tuesday afternoon, the court reopened what might be called “the Bivens question,” in two new cases.  In one, a long-running controversy over actions taken by top federal officials in the wake of the 9/11 terrorist attacks, that question is the central one.   In the other, a plea by two Mexican parents for a right to sue a U.S. Border Patrol agent who shot across the border and killed their teen-age son while he played with his pals, the court itself added that question to the case.

The two cases have the potential for a major new statement by the court, perhaps an attempt to put the Bivens remedy so far out of reach that it would become, in essence if not in specific terms, a constitutional nullity.

Here’s the background.

After the narcotics agents’ manhandling of Webster Givens in 1965 (for a narcotics crime that never was prosecuted), he wrote out his own lawsuit, seeking $15,000 in damages.  He had no real legal basis for the claim, in fact.  While state and local officials can be sued for damages for violating someone’s civil rights, Congress has never created such a remedy against federal officials.

But, in the Supreme Court’s 1971 decision in Bivens v. Six Unknown Narcotics Agents (a misnomer, because there apparently were only five), individuals were given a right to sue federal officials personally, based on claims that those officials did something outside of their normal duties that denied an individual’s constitutional rights.

While the Constitution does not, in so many words, authorize such a direct constitutional claim, the court majority said it was implied, on the theory (traced back to Chief Justice John Marshall) that there should be a remedy for such violations.  Lawsuits would point out a part of the Constitution that guaranteed a right (in Bivens’ case, the Fourth Amendment ban on unreasonable searches and seizures), and offer facts to prove it was violated.

Only two times after that, in 1979 and 1980, would the court allow an extension of that principle.  In the 1979 case of Davis v. Passman, the court allowed a damages lawsuit against a member of Congress for sexually harassing a female aide.  (For Davis, the court said, “it is damages or nothing.”).  In the 1980 case of Carlson v. Green, the court allowed a damages lawsuit against federal prison guards for “cruel and unusual punishment” in violation of the Eighth Amendment.

In the 9/11 terrorism investigation case that the court has now agreed to review, six foreign nationals have been trying to get a court to assess money damages against former Attorney General John D. Ashcroft, former FBI Director Robert Mueller, the former federal immigration commissioner, and two wardens at a federal detention facility in Brooklyn, N.Y.

The foreign nationals were among 84 individuals who had been taken into custody (part of the total of 762 rounded up during the post-9/11 investigation) and were kept for months under severely punishing conditions at the detention center in Brooklyn.  They do not contest their arrest, focusing instead on the policy under which individuals like them would be held in harsh conditions until federal officials could be persuaded that they were not terrorists.  After being deported, some of them, through their lawyers, sued for damages based on claims – among others—of discrimination and due process violations.

A federal appeals court, the Second Circuit, based in New York, allowed their lawsuit to go forward, at least on the claims of bias and due process violations.  The Circuit Court majority got around the Supreme Court’s admonition not to create a “new” Bivens remedy by concluding that these claims fit within traditional constitutional protections.

That is the outcome the court has now agreed to review.  However, it could be that there will only be six Justices (the minimum necessary) available to decide the case, because Justices Elena Kagan and Sonia Sotomayor have disqualified themselves – apparently based on prior roles that somehow were connected to this long-running lawsuit.  The court, perhaps, granted review in the expectation that, by the time a hearing is held, there would be a ninth Justice who could join in the ruling.

(This case is actually a sequel to a 2009 ruling by the court in the case of another foreign national who sought, unsuccessfully, to sue Ashcroft and other federal officials for similar claims.  The court at that time found the claim wanting in evidence of wrongdoing.)

In the case of the shooting death of a Mexican youth (a case in which the Mexican government is supporting the parents’ right to sue), the court on Monday agreed to review the case.  In doing so, however, it told the lawyers on both sides to come prepared to argue whether the parents do qualify for a right to seek a Bivens remedy.  Before the court added that question, the parents were seeking a ruling that the Constitution extends its guarantees of rights across the border into a foreign nation.

The Supreme Court previously has frowned on such applications of the Constitution, but apparently may have been persuaded by the Mexican government’s involvement at least to look into the case.  The Bivens question, though, could well spell doom for the parents’ plea.  At least it was an ominous sign.

Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011. Denniston has covered the Supreme Court since 1958. His work also appears on

Recent Stories on Constitution Daily

Supreme Court takes case about border patrol shootingCourt to take a varied look at the First AmendmentVideo: Hillary Clinton, Donald Trump and the Constitutional Stakes


Sign up for our email newsletter