Limiting Bivens: The US Supreme Court’s Reluctance to Allow Lawsuits Against Federal Agents Commentary
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Limiting Bivens: The US Supreme Court’s Reluctance to Allow Lawsuits Against Federal Agents

In the aftermath of the George Floyd protests, the legal doctrines shielding law enforcement from accountability have become increasingly scrutinized, with qualified immunity by far the most well-known (and most controversial). But on November 5, the Supreme Court announced it will hear at least one of three cases that address another form of immunity for federal agents, one they receive in addition to qualified immunity.

Unlike state and local officials, who can be sued under Section 1983, Congress never passed an analogue to Section 1983 that explicitly authorizes lawsuits for damages against federal officials who infringed on an individual’s constitutional rights. Initially, this lacuna granting de facto immunity in federal court for federal officers wasn’t too much of an issue. Until Congress enacted the Westfall Act in 1988, victims had long been able to file tort lawsuits in state court against any federal officer who abused their position. For instance, an agent accused of an unconstitutional search or seizure could be sued for trespass under common law.

Building on this legacy, the Supreme Court in 1971 handed down Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, which allowed Webster Bivens, a Black man who was manacled and strip searched, to sue the narcotics officers responsible under the Fourth Amendment. Over the years however, the Court has become increasingly wary of allowing suits for damages outside of Section 1983, so aside from a few increasingly narrow circumstances, it became virtually impossible to sue a federal officer who violated the Constitution, even if they aren’t shielded by qualified immunity. And with the Westfall Act in effect, for many victims, it’s Bivens or nothing. 

Consider Hamdi Mohamud and Kevin Byrd. Although the two have wildly different backgrounds (the former is a Somali refugee, the latter a Texan small business owner), both had their Fourth Amendment rights so egregiously violated that the federal officers were denied qualified immunity. Nevertheless, both cases were eventually thrown out, because the officers happened to work for the federal government. Represented by the Institute for Justice, Hamdi and Kevin have filed cert petitions urging the Supreme Court to take their cases and revitalize Bivens.

Back in June 2011, when Hamdi was a high school senior, she and two of her friends were walking in Minneapolis when they got into a fight with one Muna Abdulkadir, who smashed one friend’s windshield and struck the other friend with a knife. Unbeknownst to Hamdi, Muna had a powerful ally: St. Paul police officer and then-deputized US Marshal Heather Weyker. 

At the time, Weyker was working on the case of her career, investigating an interstate sex trafficking ring among Somali immigrants, an investigation ultimately revealed as a sham. In order to protect her witness, Weyker falsely claimed that Hamdi and her friends tried to intimidate Muna, which led to those three charged with tampering with a federal witness. As three federal courts subsequently acknowledged, following the arrests, Weyker “fabricated facts, knowingly relayed false information, and withheld exculpatory facts” in a criminal complaint and sworn affidavit that would keep the three women behind bars. 

As a result, Hamdi would go on to spend more than two years in jail, despite never being convicted of a crime. Ultimately, as Weyker’s fantastical claims of an interstate trafficking ring collapsed (despite scoring 30 indictments, no one was convicted), the case against Hamdi was dismissed and her two friends were acquitted.  

Once freed, Hamdi was determined to vindicate her rights and filed a federal lawsuit against Weyker. Siding with Hamdi, a district court denied Weyker qualified immunity, declaring that “a reasonable officer would know that deliberately misleading another officer into arresting an innocent individual to protect a sham in­vestigation is unlawful.” When Weyker appealed this ruling however, the court of appeals sided with her, holding that as a federal agent at the time, Weyker could not be sued even if qualified immunity did not shield her. 

A similar fate befell a civil rights lawsuit brought by Kevin Byrd. After his ex-girlfriend got into a car crash with her then-boyfriend, Eric Lamb, Kevin drove to the bar where the couple had been kicked out the night before. As he was leaving the parking lot, Eric’s father, Ray Lamb, jumped out of a truck, tried to smash one of Kevin’s car windows, screaming he would “blow his head off.” 

The elder Lamb then aimed his gun at Kevin and pulled the trigger; it jammed. Lamb, a Department of Homeland Security agent, was eventually arrested for aggravated assault with a deadly weapon and misdemeanor criminal mischiefthanks to the parking lot video footage, which revealed him to be the aggressor; those charges were ultimately dropped. 

To hold Lamb accountable for excessive force and unlawful detention, Kevin filed a Bivens claim. Like with Hamdi’s case, a district court denied Lamb’s demand for qualified immunity, but he was still immunized on appeal due to his employment as a federal officer. 

While Mohamud v. Weyker and Byrd v. Lamb are still pending, the Supreme Court just accepted a third Bivens case, albeit from an immigration officer who argued the Bivens claim against him was improperly granted. 

Although the officer presented three questions in his cert petition, the Supreme Court only granted the first two, which asked whether Bivens applies to allegations of First Amendment retaliation and to immigration agents accused of violating the Fourth Amendment. Notably, the Court declined to consider the third question, which point-blank asked “whether the Court should reconsider Bivens.” 

So while the court won’t give Bivens the death blow this term, the doctrine is still on life support. Over the past 40 years, the Supreme Court has soured on Bivens. On almost a dozen different occasions, the court pointedly narrowed Bivens  and rejected Bivens from covering other constitutional claims.

The most significant denial in recent years came in 2017, when the Court rejected a lawsuit that challenged the arrest and detention of hundreds of Muslim men shortly after 9/11. In Ziglar v. Abbasi, an unusual 4-2 decision (Sotomayor and Kagan had to recuse themselves), the Supreme Court created a new two-step test that made it significantly more difficult for victims to sue federal officers under Bivens. First, courts must consider if the facts of the case present a “new Bivens context.” If the case is not meaningfully different, then the lawsuit can proceed. But if there is a new context for the case, courts must then evaluate any “special factors counselling hesitation” against extending Bivens, which it deemed a “‘disfavored’ judicial activity.”

Yet even as the Supreme Court cabined Bivens, it emphasized that its opinion in Abbasi was “not intended to cast doubt on the continued force, or even the necessity of Bivens in the search-and-seizure context in which it arose.” Indeed, since Abbasi, seven different appellate courts have allowed “garden-variety” Bivens claims alleging unlawful searches and seizures to proceed against line-level federal officers. That includes the Ninth Circuit, which sided with innkeeper Robert Boule. 

Unfortunately, Kevin and Hamdi were in the wrong states. Although threatening to shoot a non-threatening civilian and wrongfully arresting an innocent teenager should be in the same “search-and-seizure context” as Bivens, both the Fifth and Eighth Circuits used trivial factual differences to thwart Hamdi and Kevin’s lawsuits. For instance, both courts cited the fact that those cases didn’t occur in a home, unlike Bivens

Invoking a “presumption against creating new Bivens actions,” the Eighth Circuit refused to accept Hamdi’s Bivens claim because “no Supreme Court case exactly mirrors the facts and legal issues presented here.” 

Likewise, under precedent set in the Fifth Circuit, “‘virtually everything beyond the specific facts of the Bivens trilogy is a ‘new context,'” Judge Don Willett despaired in his concurrence in Byrd. “And new context = no Bivens claim.”

This utter lack of accountability is particularly concerning with the increasing federalization of law enforcement. 

When Congress debated the Ku Klux Klan Act in 1871 (which ultimately became Section 1983), federal law enforcement was a mere shadow of the Leviathan it’s become today. Since the Founding, law enforcement was primarily a matter for states and localities, with the federal government left to enforce a limited set of offenses, like mail fraud or failing to pay customs duties. Yet in 1870, the Customs Service had fewer than 80 special agents and investigators in its ranks, while the Postal Service employed a mere 48 special agents. In fact, the US Department of Justice, which was created that same year, initially wasn’t even given the power to hire full-time investigators and instead had to rely on Secret Service agents.

Today, however, the federal government employs over 132,000 full-time law enforcement officers. Additionally, tens of thousands of local and state law enforcement agents have been deputized as federal officers (and receive all the legal protections therein) for serving on one of the roughly 1,100 joint task forces operating across the country. 

With Bivens “practically a dead letter,” failing to rectify the decisions rendered by the Fifth and Eighth Circuits would, in the words of Judge Willett, enable those multitudes of “federal officials to operate in something resembling a Constitution-free zone.”


Anya Bidwell is an attorney with the Institute for Justice.


Nick Sibilla is a writer and legislative analyst with the Institute for Justice.


Suggested citation: Anya Bidwell and Nick Sibilla, Limiting Bivens: The US Supreme Court’s Reluctance to Allow Lawsuits Against Federal Agents, JURIST – Professional Commentary, November 22, 2021,

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