On the morning of November 26, 1965,
agents of the Federal Bureau of Narcotics entered the apartment of Webster
Bivens and arrested him for a narcotics violation. It was alleged that the
agents manacled Mr. Bivens in front of his wife and children, threatened to
arrest the entire family, and searched the entire apartment. Mr. Bivens was
thereafter taken to the federal courthouse in Brooklyn, where he was
interrogated, booked, and strip-searched.
Almost two years later, Mr. Bivens sued in
the Federal District Court, complaining that the federal agents arrested him
without a warrant, that they used unreasonable force, and that they made the
arrest without probable cause. But the agents argued that a violation of the
Fourth Amendment to the U.S. Constitution didn’t create a basis for a lawsuit.
The Supreme Court disagreed. Citing the
seminal case of Marbury v. Madison, the Court said that 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.’” [1] Having concluded
that Mr. Bivens had stated a proper cause of action under the Fourth Amendment,
the Court held that he was entitled to recover money damages for any injuries
he had suffered as a result of the agents’ constitutional violation.
The case was Bivens v. Six
Unknown Federal Narcotics Agents, and the Court relied on a principle that
is a critical feature of our legal tradition going back to England. As Sir
William Blackstone put it in his Commentaries on the Laws of England, “it is a
general and indisputable rule, that where there is a legal right, there is also
a legal remedy, by suit or action at law, whenever that right is invaded.” [2] Webster Bivens
had the rights guaranteed by the Fourth Amendment, and thus had a lawsuit
available to him for any violations of those rights.
Recently, in Hernandez v. Mesa,
the Supreme Court was asked to extend the holding of the Bivens case to
a cross-border shooting. What happened in this case was that a 15-year-old
Mexican national by the name of Sergio Adrián Hernández
Güereca was with a group of friends in a concrete culvert that separates El Paso, Texas, from Ciudad
Juarez, Mexico, the border running through the center of the culvert. Border
Patrol Agent Jesus Mesa, Jr., was detaining one of Hernández’s
friends on the U.S. side. Hernández was also on the U.S. side and ran back to
the Mexican side, whereupon Agent Mesa shot and killed him.
Hernández’s parents sued in the United
States District Court for the Western District of Texas, alleging a violation
of his Fourth and Fifth Amendment rights. But when the case reached the Supreme
Court, the Court declined to apply Bivens on separation of powers
grounds. Specifically, the Court said that with “the demise of federal general
common law, a federal court’s authority to recognize a damages remedy must rest
at bottom on a statute enacted by Congress…, and no statute expressly creates a
Bivens remedy,” [3] thus, coming very
close to overruling Bivens entirely.
But that reasoning completely ignores Clearfield
Trust Co. v. United States, where the Court said that where federal
questions are involved “it is for the federal courts to fashion the governing
rule of law according to their own standards” in the absence of an applicable
Act of Congress. [4] There is no
federal common law in cases where the federal courts take cognizance based on
the parties being residents of different states, although the legal questions
are based on state law. But that rule doesn’t apply where the legal question is
a federal one, as in the Bivens case as well as Hernandez v. Mesa.
It thus appears that in the Hernandez
case the Court wasn’t exercising laudable judicial restraint, but was
abrogating its role. There would have been no intrusion on the function of
Congress involved in permitting Hernández’s parents to proceed with their case.
The Court would not have been making any substantive law; the Fourth and Fifth
Amendments to the Constitution are already the law, and that whether Congress
likes it or not.
As a result of the Court’s decision we now
have a situation where there is no legal remedy for the violation of a legal
right. This strikes at the very heart of our civil liberty, and we all should
be alarmed at this development.