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Suing a Federal Agent: What Is a Bivens Claim?

By George Khoury, Esq. | Last updated on

It's not easy for a private citizen to sue a federal employee for a civil rights violation. If there's no statute to allow the lawsuit, then historically you couldn't bring your case. That's where the so-called Bivens claim becomes important.

A Bivens claim is a special type of 'implied cause of action' that was created by the Supreme Court, in the Bivens case, to allow private individuals to sue federal employees for constitutional violations when no statute has authorized such. Bivens claims are also sometimes referred to as constitutional torts.

Normally, when a person suffers a violation of their constitutional or civil rights, particularly in the context of police, prison, immigration enforcement, officer misconduct, there are usually legal remedies. However, when these types of constitutional violation stem from the actions of a federal agent, appointee, officer, or employee, victims often find that many of the typical remedies will not be available.

Why Is Bivens Necessary?

Bivens claims are necessary in order to provide individuals protection and redress from constitutional violations at the hands of federal employees, who have more protection from being sued than most people would expect. Similarly to 42 USC Sec. 1983, a Bivens claim is a sort of backup cause of action that will provide a legal remedy if another does not exist. However, unlike Sec. 1983 claims which cannot be used against the feds, that is a Bivens claim's exclusive purpose.

Although Bivens claims are meant to work as a catchall, courts have been consistently limiting the application of Bivens to cases involving violations of the First, Fourth, and Fifth Amendments. Additionally, when the courts find that the legislature intended to not provide a remedy, the courts will generally not extend one.

Bivens v. Six Unknown Federal Narcotics Agents

The actual Bivens case involved an individual who asserted that six federal narcotics agents violated his Fourth Amendment rights when they performed a warrantless search of his home, without probable cause, then arrested, stripped searched, and booked him. The plaintiff was denied the opportunity to pursue relief by the lower courts because the law did not authorizes cases against federal agents, as it did against state agents, until his appeal reached, and was decided, by the Supreme Court in 1971.

To prove a Bivens claim, a plaintiff must be able to show that they were deprived a constitutional right at the hands of a federal official, that there is no other legal remedy available to them, and that no special factors or immunity defenses can be raised to defeat the claim.

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