Go Ahead and Say “Never” on Bivens Extensions

Way back in Reconstruction, Congress created a civil cause of action against state and local officials who violate federal constitutional rights. Today, that statute is 42 U.S.C. § 1983. Congress did not, however, create a parallel right to sue federal agents. In 1971, the Supreme Court made one up anyway in the case of Bivens v. Six Unknown Fed. Narcotics Agents.

The Court extended Bivens to a couple of new contexts in the early years afterward but soon came to realize it had overreached. In Wednesday’s decision in Egbert v. Boule, Justice Thomas notes in the opinion of the Court, “Over the past 42 years, however, we have declined 11 times to imply a similar cause of action for other alleged constitutional violations.” In Egbert, the Court declined to extend Bivens to a claim of allegedly excessive force allegedly used by a Border Patrol agent against an American citizen on U.S. soil.

I emphasize “allegedly” because this case is a pretrial dismissal before any facts have been proved. In such a case, the defendant argues — without admitting the allegations — that even if they were true they would not amount to a cause of action, allowing a case to be terminated without the time and expense of discovery and trial, which can be huge. This point is far too often glossed over in reporting, and people talk about the case as if the allegations were known facts. They rarely are.

This case is distinguishable from the case two years ago where CJLF argued against expansion of Bivens. In Hernández v. Mesa, we opposed extension to the case of a Border Patrol agent who used force against a Mexican national across the border in Mexico after he and his companions had attacked the agent with rocks. The present case is closer to Bivens itself, with the fact that the agent was in the Border Patrol and engaged in border protection duties, rather than domestic law enforcement, being the principal difference. The majority opinion follows the well-trodden path of saying that Bivens extensions are “disfavored” and none is justified here.

Justice Gorsuch concurs in the judgment but calls for a more categorical approach. Instead of going case-by-case, just say flat out that the Court will not extend its Bivens overreach under any circumstances, and the matter is for Congress to decide. I am inclined to agree.

Is it realistic to expect Congress to act? For many legal problems that Congress should act on, the answer is no. Our elected representatives are primarily interested in pork barreling, virtue signaling, and other activities that they perceive as getting them good press and increasing their chances of reelection. Actually making good policy is far down the list for too many of them.

However, law enforcement use of force is a high profile issue and one that has been actively discussed among the general population. Next year, we are likely to have divided government, and if so bipartisan legislation is the only kind that will get passed. We will be a few years removed from the George Floyd riots, and high-profile crime and disorder is reminding people how much we need effective law enforcement. Perhaps then we can reach a compromise measure that provides needed compensation for genuine violations without dragging law enforcement agencies and officers into a swamp of litigation.

That’s not a new idea. See Chief Justice Burger’s dissent in Bivens itself, over 50 years ago. But the time may be ripe.

Oh, and don’t shed any tears for Mr. Boule until you have read page 3 of the opinion.