In one of the (unfortunately) least surprising decisions of the Term, SCOTUS held Tuesday
Comments
Asher, I think that’s not quite right. The language in Abbasi is so broad that most courts are rejecting Bivens claims in the non-exotic contexts that you describe. For one example outside the prison context (which is what I know best), in Tun-Cos v. Perrote the Fourth Circuit said no Bivens remedy for entirely banal Fourth Amendment violations by federal law enforcement officers because they were ICE agents, instead of some other kind of federal law enforcement officer which Bivens should protect. In prison cases, courts are rejecting plenty of deliberate indifference cases due to one distinction or another. But most run of the mill prison cases aren’t deliberate indifference cases, they’re excessive force or failure to protect or retaliation or interference with legal mail, and so on, and those are even harder to win after Abbasi when a cause of action was routinely recognized before it. (Bizarrely, the Supreme Court recognized a Bivens remedy for an 8th Amendment failure to protect claim in Farmer v. Brennan but forgot to mention it in Abbasi so courts are splitting on whether it counts as a “new context.”) Those of us who represent, e.g., people abused in prison would be very happy if Bivens continued to reliably exist for our clients who were injured in the sort of routine unconstitutional conduct by individual low-level officers that makes up the bulk of Section 1983 cases but empirically that’s just not what’s happening.
Posted by: Samuel Weiss | Feb 25, 2020 9:42:02 PM
“If any case not on all factual fours with Bivens repesents a new context, the majority gets where Justice Thomas wants to go, without the political cost of overrulings.”
I can never understand when people say this, because there are a whole lot of cases on all factual fours with Bivens (and the subsequent cases extending it). A cause of action against federal officers for non-exotic Fourth Amendment violations, deliberate-indifference Eighth Amendment claims, and even gender-discrimination claims is a really big deal! The stuff Bivens allows probably makes up the bulk of 1983 claims. The idea that Bivens might as well not exist if it can’t be extended to exotic cross-border shootings and other colorably new contexts is just absurd on its face, like saying “there might as well not be a Title VII if the Court doesn’t extend it to sexual-orientation discrimination; it comes to the same thing as repealing or invalidating the whole statute without the political costs.”
Posted by: Asher Steinberg | Feb 25, 2020 6:26:38 PM