Slides from the 2021 USD Bergman Memorial Lecture

WEDNESDAY, MARCH 3, 2021 12:00 – 1:30 p.m. PST

ROBERT A. SCHAPIRO Dean & Professor of Law USD School of Law

USD PARTNERS Alumni Association

Law Alumni Board of Directors Pardee Legal Research Center

School of Law

2021 BERGMAN PLANNING COMMITTEE Carolina Bravo-Karimi '08 (JD), President-Elect Jim Crosby '83 (JD), Immediate Past President

Kirsten Gallacher '12 (JD) Knut Johnson '86 (JD), Past President Alex Landon '71 (JD) Katie Parker '02 (JD)

COMMUNITY PARTNERS

USD STUDENT ORGANIZATION PARTNERS Asian Pacific American Law Students Association Criminal Law Society La Raza Law Students Association Law Students for Cross-Racial Understanding Middle Eastern Law Students Association National Lawyers Guild Public Interest Law Foundation

Society of Changemaker Organizations Women's Law Caucus

MODERATOR JULIA YOO President

National Police Accountability Project

Partner

Iredale & Yoo, APC

PANELISTS HON. DANIEL E. BUTCHER Magistrate Judge

U.S. District Court, Southern District of California

MICHAEL R. MARRINAN '76 (BA), '79 (JD) Civil Rights Attorney

BENJAMIN PRADO Former Bivens Plaintiff

American Friends Service Committee

AN AREA OF LAW

WHAT IS BIVENS?

Shorthand for civil rights cases against federal officers

A CASE

Bivens v. Six Unknown Agents, 403 U.S. 388 (1971)

Issue

May individuals whose constitutional rights are violated by federal agents bring a private cause of action against the agents?

Holding: Yes

“[W]here federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.”

HOW THE COURT RULED IN BIVENS MAJORITY William J. Brennan Jr. William O. Douglas CONCURRENCE Thurgood Marshall John M. Harlan II Potter Stewart Byron White

DISSENT Warren E. Burger, Chief Justice Hugo Black Harry Blackmun

IS THIS THE RIGHT RESULT? PLAINTIFF’S PERSPECTIVE

Brennan: “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.”

LAW ENFORCEMENT PERSPECTIVE

Blackmun: Allowing suit against the officers “will tend to stultify proper law enforcement and make the day’s labor for the honest and conscientious officer even more onerous and critical.”

HARRY A. BLACKMUN Associate Justice U.S. Supreme Court

(1970– 1994)

WHO SHOULD DECIDE WHETHER THE REMEDY IS AVAILABLE?

COURTS? Justice Brennan

“Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty . . . . The present case involves no special factors counseling hesitation in the absence of affirmative action

by Congress.”

WILLIAM J. BRENNAN JR. Associate Justice U.S. Supreme Court

(1956 – 1990)

OR CONGRESS? Justice Black (Dissenting) “Although Congress has created such a federal cause of action against state officials . . . , it has never created [one] against federal officials. If it wanted to do so, Congress could . . . For us to do so is, in my judgment, an exercise of power that the Constitution does not give us.”

HUGO L. BLACK Associate Justice

U.S. Supreme Court

(1937 – 1971)

CLAIMS AGAINST STATE AGENTS Federal Constitutional Violations 42 U.S. Code § 1983 Administrative Claim?

SOL: 2 Years

State Law Torts California NO Administrative Claim?

Within 6 Months

4th Amendment: False Arrest, Excessive Force Negligence?

Public Entity Liable?

(No respondeat superior)

YES

False Arrest, Battery

NO Negligence?

“Monell” Only Public Entity Liable?

(respondeat superior)

Qualified Immunity?

YES

Qualified Immunity?

Attorney Fees?

(42 U.S.C. § 1988)

YES Attorney Fees?

(Civil Code § 52.1 only)

YES YES

NO

BIVENS AND BRENNAN DAVIS V. PASSMAN (1979) Recognizing a Bivens cause of action under the Fifth

Amendment for a Plaintiff who was fired because the Congressman for whom she worked deemed it “essential that the understudy to my Administrative Assistant be a man.”

CARLSON V. GREEN (1980) Recognizing a Bivens cause of action under the

Eighth Amendment for a prisoner who died because of a prison officials’ failure to provide medical care.

LIMITS TO BIVENS RECALL BIVENS RATIONALE: “The present case involves no special factors counseling hesitation in the absence of affirmative action

by Congress.”

LIMITS TO BIVENS CHAPPELL V. WALLACE (1983) (BURGER; UNANIMOUS)

No Bivens remedy for enlisted military personnel alleging race discrimination by superior officers.

“The special nature of military life - the need for unhesitating and decisive action by military officers and equally disciplined responses by enlisted personnel would be undermined by a judicially created remedy exposing officers to personal liability at the hands of those they are charged to command.”

LIMITS TO BIVENS SCHWEIKER V. CHILICKY (1988) (O’CONNOR; 6-3, BRENNAN DISSENT) No Bivens remedy for Social Security recipients for constitutional violations by Social Security administrators because Congress had provided a remedy in the Social Security Act.

“[T]the concept of ‘special factors counselling hesitation in the absence of affirmative action by Congress’ has proved to include an appropriate judicial deference to indications that congressional inaction has not been inadvertent.”

BIVENS CALLED INTO QUESTION CORRECTIONAL SERVICES V. MALESKO (2001) (REHNQUIST; 5-4) No Bivens remedy against private prison employees.

Justice Scalia and Justice Thomas concurrence “Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action—decreeing them to be ‘implied’ by the mere existence of a statutory or constitutional prohibition . . . [W]e have abandoned that power to invent ‘implications’ in the statutory field . . .

There is even greater reason to abandon it in the constitutional field, since an ‘implication’ imagined in the Constitution can presumably not even be repudiated by Congress.”

ZIGLAR V. ABBASI (2017) (KENNEDY; 4-2, (SOTOMAYOR, KAGAN, AND GORSUCH DID NOT PARTICIPATE) No Bivens remedy for Arab and Muslim men (non-citizens) arrested after 9/11 and held in harsh conditions without criminal charges.

Bivens is a relic of an “ancien regime” when “the Court

followed a different approach to recognizing implied causes of action than it follows now.” “[E]xpanding the Bivens remedy is now a disfavored judicial activity.”

ABBASI (CON’T) “[M]ost often,” Congress, not the courts, should decide whether and how to provide a damages remedy, because “[w]hen an issue involves a host of considerations that must be weighed and appraised, it should be committed to those who write the laws rather than those who interpret them.”

THE ABBASI TEST 1. Does the complaint present a new Bivens context?

“If the case is different in a meaningful way from previous Bivens cases [approved by the Supreme Court], the context is new.”

THE ABBASI TEST 2. Are there special factors counseling hesitation?

The special factors “inquiry must concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.” “[I]f there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy as part of a system for enforcing the law and correcting a wrong, the courts ‘must refrain from creating the remedy in order to respect the role of Congress in determining the nature and extent of federal-court jurisdiction under Article III.’”

THE ABBASI TEST

Examples of Special Factors a. Alternative remedies

b. Congressional legislation in the area c. National security d. Challenges to official policy and procedures e. Costs to the government i. Increased difficulty recruiting employees ii. Burdens on government employees/distraction from official duties

WHAT’S LEFT OF BIVENS AFTER ABBASI? ABBASI “[T]his opinion is 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. Bivens does vindicate the Constitution by allowing some redress for injuries . . . The settled law of Bivens in this common and recurrent sphere of law enforcement, and the undoubted reliance on it as a fixed principle of law, are powerful reasons to retain it in that sphere.”

HERNÁNDEZ V. MESA (2020) (ALITO; 5-4)

No Bivens remedy for a young man who was shot by a Border Patrol agent on the Mexican side of the border.

Majority: “If ‘the Court’s three Bivens cases [had] been . . . decided today,’ it is doubtful we would have reached the same result.”

Justice Thomas and Gorsuch concurrence: “[I]n my view, the time has come to consider discarding the Bivens doctrine altogether . . . Stare decisis provides ‘no veneer of respectability to our continued application of [these] demonstrably incorrect precedents.’”

HERNÁNDEZ V. MESA (2020)

42 U.S. CODE § 1983 v. BIVENS 42 U.S. Code § 1983 Any Constitutional Violation

Bivens Limited Constitutional Violations

Qualified Immunity?

YES Qualified Immunity?

YES

Punitive Damages?

YES Punitive Damages?

YES

“Monell” Claims?

YES “Monell” Claims?

NO

Attorney Fees?

(42 U.S.C. § 1988)

YES Attorney Fees?

NO

QUALIFIED IMMUNITY Officers are entitled to qualified immunity unless their conduct “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.”

Harlow v. Fitzgerald (1982)

QUALIFIED IMMUNITY Policy Justifications • Avoids “the expenses of litigation” by allowing district courts to dismiss suits at early stages; • Requiring officers to respond “diver[ts] . . . official energy from pressing public issues;

• The threat of litigation “deters . . . able citizens from acceptance of public office”; and • The “fear of being sued will ‘dampen the ardor of all but the most resolute, or the most irresponsible [public officials] in the unflinching discharge of their duties.’”

QUALIFIED IMMUNITY “A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.”

Pierson v. Ray (1967)