Supreme Court Makes It Even More Difficult To Sue Federal Officials Over Rights Violations

from the BUILD-THAT-WALL dept

If you wanted even more leeway for government officials to bypass accountability, you've got it. Courtesy of the US Supreme Court, the immunity for federal officials has just been expanded. On a day when the court handed down two significant First Amendment victories, the court has dialed back an avenue of redress for people whose rights have been violated by federal employees.

This case has its origins in the 2001 Twin Towers attack. In the wake of the attack, the government engaged in some questionable behavior (not unlike some of its World War II actions), rounding up undocumented Arab immigrants and detaining them under harsh conditions.

When they were finally released, they sued the US government for violating their rights. Unfortunately, options for directly suing federal officers are severely limited. Up until the Supreme Court's 1971 Bivens decision, plaintiffs had almost no way to seek redress for rights violated by federal employees. Bivens produced a new option, but its limited scope still made it very difficult for plaintiffs to secure a ruling in their favor. It's especially useless in cases like the one before the Supreme Court -- a case where the plaintiffs have no other way to bring a suit against the government other than going the Bivens route, thanks to their status as undocumented aliens at the time the rights violations allegedly occurred.

This new decision limits Bivens even further by adding national security concerns to the mix. In cases like these -- prompted by federal government reactions to a domestic terrorist attack -- the Supreme Court comes down on the side of the US government. But it's not just national security playing a limiting factor in seeking justice for violated rights. It's pretty much any case where the government hasn't seen this particular sort of violation before.

Cornell law prof Michael Dorf points out how severely restricting this ruling is for plaintiffs who have a single recourse option available to them:

The key move in the majority opinion is one of characterization. The Court says that it is not enough for a Bivens action to be available that there are precedents in the same general area holding that no "special factors" warrant denial of a Bivens action; the "special factors" must be evaluated by reference to a highly particularized description of the case at hand. How particularlized? The Court says:

Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one, some examples might prove instructive. A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.

The shorthand version is the same excuse used in tons of normal, non-Bivens civil rights cases: if the court hasn't previously ruled on this specific set of circumstances before (and judged them to be a violation of rights), qualified immunity for government employees will be upheld. The problem is violations must be "clearly established" by a court decision to bypass immunity -- which is an extreme rarity in a system that heavily relies on precedent, frequently punts on tough legal questions, and often tells plaintiffs their redress is tied to legislation Congress has yet to write, much less pass.

Mix in national security concerns, "special considerations," and expansive immunity protections for government employees and this decision demands future Bivens petitioners do the impossible:

That means that it is now possible for a federal officer to violate clearly established rights--i.e., to commit rights violations that are established as clear in virtue of being very similar to rights violations that were adjudicated in prior cases--but still not be subject to a Bivens action because the case is nonetheless too different from prior Bivens cases to overcome the "special factors" limitation.

To bring a successful Bivens action a civil rights plaintiff must now pass through the eye of a tiny needle inside the eye of another tiny needle.

The decision [PDF] also suggests plaintiffs just wait around with their rights violated until Congress does something about it:

The proper balance in situations like this, between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the Nation in times of great peril, is one for the Congress to undertake, not the Judiciary.

What remains after this decision is almost nothing for plaintiffs -- like the Muslims and Arabs rounded up in a legally-unsound reaction to a terrorist attack -- and another expansion of immunity protections for federal officers and officials. As Steve Vladeck pointed out on Twitter, future Bivens cases will be limited to a small subset of prior Bivens decisions. The chances of previous decisions being perfectly applicable to the facts at hand in future cases hovers right around 0%. In the context of this case, it means the government can again engage in such a roundup of Muslims and Arabs without worrying about future lawsuits. None of the courts involved declared this roundup to be a violation of rights, so as far as the judiciary is concerned, similar actions won't violate any established precedent.

Plaintiffs bringing these complaints -- plaintiffs who often have no other options under the law -- will have to be willing to spend lots of time and money pursuing miracles. The Supreme Court has ruled that if it walks like a duck, acts like a duck, but quacks a bit more like a Canvasback than a Mallard, federal immunity will be upheld..


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  • identicon
    Anonymous Coward, 20 Jun 2017 @ 9:43am

    > In the context of this case, it means the government can again engage in such a roundup of Muslims and Arabs without worrying about future lawsuits

    Gee I wonder what that would look like.

    https://www.youtube.com/watch?v=wYeGKP_lgnA

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Jun 2017 @ 6:05pm

      Re:

      The decision is very narrow. The decision does not apply to US citizens or legal foreign nationals bringing a lawsuit against civil rights abuse.

      Even then as an illegal foreign national, you can still bring suit against the abuser in your own country.

      reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 20 Jun 2017 @ 9:53am

    Ah Godwin...

    The SS would be proud.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Jun 2017 @ 9:58am

    ...to commit rights violations that are established as clear in virtue of being very similar to rights violations that were adjudicated in prior cases--but still not be subject to a Bivens action because the case is nonetheless too different from prior Bivens cases to overcome the "special factors" limitation.

    Yes, I see. This time they rounded up Muslims and Arabs (rather than Japanese and Germans) in response to a surprise attack carried out by crashing planes into a building (as opposed to dropping bombs from planes onto both ships and buildings) with the suspected aid and support of a foreign nation-state (as opposed to the confirmed aid and support of a foreign nation-state), due to a fear that said groups would provide material support and aid to the enemy. Very different, I agree.

    reply to this | link to this | view in chronology ]

    • identicon
      Talmyr, 21 Jun 2017 @ 7:21am

      Re:

      Oh goodie, can we arrest and expel Americans with impunity because of your illegal Iraq war?

      That's stupidly broad, and was ridiculous in WW2; more so now. Just because someone is an illegal alien doesn't give the government the right to treat them illegally, and moreso if it is a blanket abuse based on nationality, race or religion.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 21 Jun 2017 @ 10:20am

        Re: Re:

        You are right. Since they are here illegally, we should just kick them out.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 21 Jun 2017 @ 6:50pm

          Re: Re: Re:

          You are right. Since they are here illegally, we should just kick them out.

          Even better, since they are here illegally, they should have no rights. Therefore it should be legal to round them up and sell them into slavery. If we started doing that with illegal immigrants I bet we would see a dramatic drop in illegal immigration.

          reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 20 Jun 2017 @ 9:59am

    Crystal Clear

    If Congress does take up the challenge (fat chance), I bet 5 Internets that they exempt themselves.

    The government (all branches, all positions) should be liable, at least in some way (maybe loss of office or position), for violations of the Constitution. That there is little ability to redress the government for such patently illegal action is shameful.

    Congress passing laws that have a potential to violate the Constitution should be high on the list of actionable items, but this position should not preclude any other government official from taking responsibility for their actions.

    Qualified immunity should have a much different standard for qualification, such as the official proving beyond a reasonable doubt that they did not intend to violate anyone's rights, and that the 'accident' was the only incident, and that there is a good excuse for not knowing what their responsibility was, given that it was their responsibility to know in the first place. Good luck with that.

    reply to this | link to this | view in chronology ]

  • icon
    PlagueSD (profile), 20 Jun 2017 @ 10:11am

    Screw 1984. I think Star Wars is more accurate now. Master Yoda said it best.

    “Fear is the path to the dark side. Fear leads to anger. Anger leads to hate. Hate leads to suffering.”


    Pretty soon, Darth Sidious will rise out of the Senate and the Empire will be born.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Jun 2017 @ 11:10am

      Re:

      Soon?

      He has been there since the beginning. He will never be gone and will always be in the ear of those willing to listen.

      Humanity itself is its very own Darth Sidious, it's own Devil. We constantly plague ourselves with suffering & misery in the pursuit of power, wealth, or social justice at the expense of liberties and freedoms.

      reply to this | link to this | view in chronology ]

  • icon
    orbitalinsertion (profile), 20 Jun 2017 @ 10:19am

    The proper balance in situations like this, between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the Nation in times of great peril, is one for the Congress to undertake, not the Judiciary.

    Oh yay, another false dilemma, like security versus privacy.

    Ya knnnoooow, if they are making lawful decisions, deterring constitutional violations (or redressing them) won't be any interference.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Jun 2017 @ 10:59am

    Options?

    So, in the face of a lack of legal options for redress, what are people going to do? Is this how terrorists are made?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Jun 2017 @ 11:45am

      Re: Options?

      yes, this is one way that terrorists are made.

      What many do not understand, is that Governments WANT terrorists around because it gives them an excuse to remove your liberty. Kinda like a self fulfilling prophecy.

      Government has been playing this game for a long time and people almost always fall for it. The greatest evil that walks the Earth are governments. They have visiting more death, pestilence, and violence on people than all wars combined! I question the very sanity of people that run towards governments for security.

      1 Samuel 8...

      Remember what "The King(s)" who will reign over you will claim as "Their Rights"

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Jun 2017 @ 11:39am

    no surprises here really. the only one who has rights are the government itself! and it can go down any route, making up laws as it goes, to be able to use whatever 'get out of jail free' card it has or wants to use! problem is, it isn't just happening in the USA, it's happening in every supposed 'democratic, free' country! any and every excuse possible is being used to remove whatever privacy and freedom there was and bring in spying over everyone, except, of course, those who are bringing this in. laws are then being changed to suit whatever the government wants, as long as they dont impact on government. almost every country is being turned into the exact replica of what Hitler tried to do and millions died stopping! apart from anything else it shows me 2 things, 1, that every government is up to as much 'no good' as is possible, simply to get the members and friends as much wealth and power as possible and 2 that every government is so shit scared of the 'people' the only way to feel safe is to put the 'people' into slavery, spied on constantly, with no rights at all and no recourse! the problem is that sooner or later the 'people' rebel and the result is far from pretty and far from nice!!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Jun 2017 @ 11:50am

      Re:

      "supposed 'democratic, free' country!"

      What's better than having a Democracy? Running around telling everyone that we are one despite that not being the fact.

      I have told people here that US is NOT a Democracy. I got a lot of hate for it. Heck, if I tell any facts that conflict with peoples feelings I get called racist, homophobic, bigot.

      I have even provided links as proof but it does not stop them.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 20 Jun 2017 @ 11:55am

        Re: Re:

        Your "facts" are only facts on Fox News. Elsewhere in the real world they are called what they are, homophobic, racist, bigoted propaganda.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 20 Jun 2017 @ 12:47pm

          Re: Re: Re:

          The CIA, Dictionaries, Law, Wikipedia, and multitudes of other "Technically Defined" sources clearly state that I am correct.

          But hey, you can go ahead and call a country a Democracy if you want. You will be just as factually wrong as calling people racist for not liking how stupid you are.

          Facts do not care about your feeling or opinions. They just are what they are, if you don't like it go and get them changed. You can easily edit Wikipedia for starters, just don't cry like a bitch when someone changes it back to factually correct.

          Here is the link. You have a lot of editing to do.
          https://en.wikipedia.org/wiki/US_Government

          See if you can find the word Democracy in the section below.

          "The outline of the government of the United States is laid out in the Constitution. The government was formed in 1789, making the United States one of the world's first, if not the first, modern national constitutional republics.[1]

          The United States government is based on the principles of federalism and republicanism, in which power is shared between the federal government and state governments. The interpretation and execution of these principles, including what powers the federal government should have and how those powers can be exercised, have been debated ever since the adoption of the Constitution. Some make the case for expansive federal powers while others argue for a more limited role for the central government in relation to individuals, the states or other recognized entities."

          Don't let the facts bite you in the ass.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 20 Jun 2017 @ 1:13pm

        Re: Re:

        The us is not a democracy, it is a republic.
        How can one claim it is democratic when the minority rules.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Jun 2017 @ 12:19pm

    The more the govt shields its actions, the more likely citizens will say enough is enough and finally rebel.

    reply to this | link to this | view in chronology ]

  • identicon
    Personanongrata, 21 Jun 2017 @ 7:31am

    Defective Decision and Judicial Malpratice

    Supreme Court Makes It Even More Difficult To Sue Federal Officials Over Rights Violations

    Now that the federal court jesters comprising the US (not-so) supreme court have rendered their decision what legal mechanisms have they left in place for a person to hold Federal Officials accountable for their malfeasance, misfeasance and nonfeasance?

    What prevents these Federal Officials from continuing their harmful acts?

    How is a person supposed to shield themselves from the predations of Federal Officials (ie the powerful) if the courts prevent them from being held accountable?

    What prevents the court enabled predations of Federal Officials from doing harm to others.

    This decision by the US (not-so) supreme court amounts to nothing less than judicial malpractice writ-large.

    What is the US (not-so) supreme courts purpose to aid/abet criminal acts and remove all legal mechanisms of accountability on behalf of Federal Officials?

    What good is free speech without the accountability it demands?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Jun 2017 @ 10:27am

    Here is a fact. If federal officials go down this road, they put their lives at risk.

    Police officers violated rights and killed blacks, and look what happened. Some nutjob in Kansas City drives down to Texas and shoots a bunch of cops. Some nutjob in Baltimore drives up to NYC and assassinates 2 NYPD.

    What these people did was wrong, but there are people out there that are unbalanced. When they see injustice, they grab their gun and they react. They visit a softball practice and they shoot people.

    Can we not say that we reap what we sow?

    I am not advocating violence, but pointing out that it is the obvious result to injustice.

    reply to this | link to this | view in chronology ]


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