OTLA Trial Lawyer Spring 2021

24 Trial Lawyer • Spring 2021 acting in the name of the United States “possesses a far greater capacity for harm than an individual tortfeasor exercising no authority other than his own.” That understanding led the Court to hold Bivens must be entitled to a damages remedy on his constitutional claims. Although the courts have eroded the protections once promised by the Bivens decision, Bivens and the FTCA’s law enforcement proviso provide an impor- tant reminder of where we are today and where we might be headed. Both origi- nated in a time of egregious and racial- ized law enforcement violence, protest, and social unrest. Both were a break with what came before. Webster Bivens began his fight for damages pro se , and though the Bivens majority characterized its holding as “hardly . . . surprising,” the fractured decision drew three dissents and a concurrence. We are continually confronted with different versions of the same stories and experiences of police brutality, racism and suffering. But then something does seem to shift, at least a little bit. On the national scale, Black Lives Matter pro- tests have led to increased public scrutiny into police violence and a rising recogni- tion of the terrorist threat from within the ranks of police officers. Meanwhile, the Ninth Circuit in Boule v. Egbert , 980 F.3d 1309, 1312 (9th Cir. 2020) quietly held, in a relatively brief opinion, that a Bivens damages remedy was available to a plaintiff who alleged a border patrol agent violated his First and Fourth Amendment rights. Opportunities for review Today, like the 1970s, is a time of social unrest, protest and egregious and racialized police violence. How can we learn from and support the social and political movements that drive meaning- ful change? What opportunities might there be for unexpected progress on the legislative front? And what pro se plain- tiffs — or plaintiffs we represent — are preparing to raise novel arguments, or perhaps arguments that have been re- jected for decades, but that may fall on different ears today? Caitlin Mitchell specializes in employment law and civil rights litigation at Johnson Johnson Lucas &Middleton, 975 Oak St., Ste. 1050, Eugene, OR 97401. She contributes to OTLA Guaridans at the Sustaining Member level. She can be reached at cmitchell@justicelawyers.com or 541-484-2434. Law Enforcement Abuses Continued from p 23