Bivens v. Six Unknown Fed. Narcotics Agents

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1971 United States Supreme Court case

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**Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics **

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), was a case in which the US Supreme Court ruled that an implied cause of action existed for an individual whose Fourth Amendment protection against unreasonable search and seizures had been violated by the Federal Bureau of Narcotics . The victim of such a deprivation could sue for the violation of the Fourth Amendment itself despite the lack of any federal statute authorizing such a suit. The existence of a remedy for the violation was implied by the importance of the right violated.

The case was understood to create a cause of action against the federal government similar to the one in 42 U.S.C. § 1983 against the states. However, the Supreme Court has sharply limited new Bivens claims.

The Supreme Court has upheld Bivens claims only three times: in Bivens (1971), _Davis v. Passman _ (1979), and _Carlson v. Green _ (1980). Under _Ziglar v. Abbasi _ (2017) and _Egbert v. Boule _ (2022), any claim that is not highly similar to the facts in Bivens (excessive force during arrest), Davis (sex discrimination in federal employment), or Carlson (inadequate care in prison) is a "new context" to which Bivens will not be extended if "there is any reason to think that Congress might be better equipped to create a damages remedy."

Background

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On November 26, 1965, Federal Bureau of Narcotics (FBN) agents searched the Brooklyn home of the plaintiff , Webster Bivens, and arrested him without a warrant . Drug charges were filed but were later dismissed by a US commissioner (now called magistrate judge ). Bivens filed a lawsuit alleging the violation of his Fourth Amendment protection from unreasonable search and seizure. The government argued that the privacy rights the plaintiff claimed were based on state law , and any claim for damages should be brought in state court. The government also contended that the Fourth Amendment does not provide a cause of action for damages, but rather serves "merely to limit the extent to which the agents could defend the state law tort suit by asserting that their actions were a valid exercise of federal power". Bivens argued that a cause of action could be inferred because constitutional protections would be meaningless without a way to seek a remedy for their violation.

The district court agreed with the government and dismissed the suit for lack of subject-matter jurisdiction and for Bivens's failure to state a claim upon which relief can be granted. The Second Circuit Court of Appeals affirmed. The Supreme Court granted certiorari on the secondary issue of whether a plaintiff can bring a claim in federal court based solely on an alleged violation of his Fourth Amendment rights.

Bivens was represented _pro bono _ by Stephen A. Grant.

Decision

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The Supreme Court, in an opinion by Justice Brennan , laid down a rule that it will infer a private right of action for monetary damages where no other federal remedy is provided for the vindication of a constitutional right , based on the principle that "for every wrong, there is a remedy ". The court reasoned based upon a presumption that where there is a violation of a right, the plaintiff can recover whatever he could recover under any civil action, unless Congress has expressly curtailed that right of recovery, or there exist some "special factors counselling hesitation". [_clarification needed
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Concurrence

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Justice Harlan voted with the majority to reverse the lower court but also wrote a separate concurring opinion .

For the reasons set forth below, I am of the opinion that federal courts do have the power to award damages for violation of 'constitutionally protected interests' and I agree with the Court that a traditional judicial remedy such as damages is appropriate to the vindication of the personal interests protected by the Fourth Amendment.

Harlan particularly emphasized the special importance of constitutional rights. He presented that it was well-settled, even undeniable, that a suit for injunction based on a constitutional right had been long recognized in the Federal courts. However, a suit for damages should be as or more acceptable.

Dissents

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Dissenting opinions were written by Chief Justice Burger and by Justices Black and Blackmun .

Chief Justice Burger asserted the decision was legislating in an area that should be left to Congress. Justice Black basically agreed with Justice Burger and was worried about the growing docket. Justice Blackmun went a step further, saying the decision "opens the door for another avalanche of new federal cases".

Subsequent case law

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• _Butz v. Economou _, 438 U.S. 478 (1978)

• In _Davis v. Passman _, 442 U.S. 228 (1979), the Supreme Court upheld a Fifth Circuit opinion that held that even though there existed "an explicit congressional prohibition against judicial remedies for those in petitioner's position", the Court declined to infer that Congress also sought to foreclose an alternative remedy directly under the Fifth Amendment .

• _Stafford v. Briggs _, 444 U.S. 527 (1980)

• In _Carlson v. Green _, 446 [U.S.](https://en.wikipedia.org/wiki/United_States_Reports "U

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