OTLA Trial Lawyer Spring 2021

22 Trial Lawyer • Spring 2021 By Caitlin Mitchell OTLA Guardian F ederal law enforcement officials were in the national spotlight this past fall for their treatment of Black Lives Matter protesters in Portland. The world watched in horror as officers used physi- cal violence against peaceful demonstra- tors and pulled people off the street into unmarked vans. Abuses that were shock- ing to some were all too familiar to oth- ers. For years, Immigration and Customs Enforcement (ICE) has targeted immi- grant communities using similar tactics. Few attorneys take on cases that arise from these incidents. That is because pursuing justice for those who have been harmed by federal (and state) actors is a difficult business. When we hear of abu- sive search and seizure tactics, most of us think of the Fourth Amendment and 28 U.S.C. § 1983, the federal statute that creates a right of action for damages for constitutional violations committed by state actors. But Section 1983 does not Caitlin V. Mitchell apply to federal officers, such as ICE and the federal agents who assaulted the Portland protesters. In the absence of any applicable statute, we look to Bivens , a federal common law doctrine that allows lawsuits for damages against individual federal actors under certain circum- stances. Most of us probably read Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 29 L.Ed.3d 619 (1971), in law school. Federal narcotics officers in that case entered Webster Bivens’ apart- ment without a warrant or probable cause, manacled him in front of his wife and children and threatened to arrest his entire family. They searched the apart- ment and took Bivens to the federal courthouse, where they interrogated, booked and strip searched him. The U.S. Supreme Court held that Bivens could recover monetary damages for the inju- ries resulting from the agents’ Fourth Amendment violations. Damages are the ordinary remedy for an invasion of per- sonal interests in liberty, the Court ex- plained, so it “should hardly seem a surprising proposition” that plaintiffs should obtain such relief for injuries stemming from violations of the Fourth Amendment. Yet, the Court began retreating from that intuitive logic almost immediately. Today, when considering whether a Biv- ens claim can proceed, courts first decide whether the plaintiff ’s claim seeks to extend Bivens liability to any new context or category of defendants. Ziglar v. Ab- basi , 137 S. Ct. 1843, 1857 (2017). Unless the claim looks exactly like Webster Bivens’ claim, or like the claims in the only two other U.S. Supreme Court cases (decided in 1979 and 1980) in which the Court allowed a Bivens damages remedy, judges may characterize the claim as “new.” And once the claim is deemed to be “new,” extending dam- ages liability to that context becomes “disfavored.” Ashcroft v. Iqbal , 556 U.S. 662, 675 (2009). In such cases, “the question is who should decide whether to provide a damages remedy, Congress or the courts?” Zigler , 137 S Ct at 1857. The answer, the Court has held, “most often will be Congress.” Id. The results are disturbing. In the context of abuses committed by federal immigration officials, for example, the Fourth Circuit Court of Appeals re- cently dismissed a Bivens case based on ICE’s warrantless home raids and deten- tions. Tun-Cos v. Perrotte , 922 F.3d 514 (4th Cir. 2019). The court determined that claims against ICE agents for violat- ing the Fourth Amendment are “mean- ingfully different” from claims against federal narcotics agents for the same kinds of abuses. The Supreme Court denied review. Law enforcement proviso What other options exist for people who are injured by federal officials? The Federal Tort Claims Act (FTCA), enacted in 1974, waives sovereign im- munity (thus allowing the United States to be sued) when federal employees com- mit acts that would constitute torts under applicable state law. 28 U.S.C. § 1346. As initially drafted, the FTCA excepted L A W E N F O R C E M E N T A B U S E S HOW TO FILE SUIT ON THE FEDERAL GOVERNMENT