Home » Civil Liberties » Cases » Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)

Published: December 1, 2011, 01:14 PMTweet

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)

Bivens held, for the first time, that a federal court may hold individual government agents liable for money damages for violating a person’s Fourth Amendment rights. The Supreme Court further established that the Constitution itself implies a ‘‘cause of action,’’ that is, a right to sue, government agents responsible for conducting unreasonable searches and seizures.

Webster Bivens had committed no crime. Nevertheless, agents of the federal government ransacked his home, conducted a broad search, handcuffed him in front of his wife and children (whom they also threatened to arrest), and later strip-searched him— all without probable cause. This blatantly unconstitutional search seemed to have no redress: given that he was never prosecuted, exclusion of evidence found in the home was irrelevant. Bivens sued, seeking money damages, but the federal courts dismissed his claim, finding that there was no right to sue under the Fourth Amendment.

The Supreme Court reinstated his claim, holding that without an implicit right to sue, the Fourth Amendment would be reduced to mere words. Despite the lack of a remedy articulated by the text of the amendment, the Court nonetheless held that the Article III judicial power, as discussed in Marbury v. Madison, inherently includes the authority to fashion remedies (including money damages) for constitutional violations. Even though traditional state tort claims were available, the Court created a new cause of action under the Fourth Amendment, and ultimately permitted similar suits under other amendments as well.

Bivens litigation, however, is not without its difficulties. First, as a practical matter, juries are reluctant to find liability in Bivens actions because they perceive that the individual government agent, and not the government itself, will be made to pay. Second, subsequent Supreme Court decisions have made the Bivens waters far murkier. In Bush v. Lucas, Schweiker v. Chilicky, and United States v. Stanley, the Court severely restricted the analysis of whether the Constitution would imply a cause of action to particular constitutional violations. The basis for this retreat was the notion, originally detailed in Chief Justice Burger’s Bivens dissent, that the Court must defer to the will of Congress, given the lawmaking nature of the ‘‘creation’’ of remedies. Thus, if Congress has not addressed a given class of grievances, or has done so without designating the remedy of money damages, the Court should recognize the doctrine of ‘‘separation of powers’’—that the legislature should make law, and the courts should simply interpret it.

To counteract these problems, commentators have suggested that Congress should amend the Federal Torts Claim Act (FTCA) to waive immunity, thus permitting claimants to sue the government rather than the individual agent. Although Congress did create a statutory cause of action under the FTCA for such purposes, it intentionally excluded money damages. Thus, the Bivens problem still remains.

LOUIS N. SCHULZE, JR.

References and Further Reading

Bandes, Susan, Reinventing Bivens: The Self-Executing Constitution, Southern California Law Review 68 (1995): 289.
Grey, Betsy J., Preemption of Bivens Claims: How Clearly Must Congress Speak? Washington University Law Quarterly 70 (1992): 1087.
Pillard, Cornelia T.L., Taking Fiction Seriously: The Strange Results of Public Officials’ Individual Liability under Bivens, Georgetown Law Journal 88 (1999): 65.
Thomas, Charles W., Resolving the Problem of Qualified Immunity for Private Defendants in } 1983 and Bivens Damage Suits, Louisiana Law Review 53 (1992): 449.

Cases and Statues Cited