Bivens Action (Constitutional Torts: All You Need To Know)

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What Is A Bivens Action

A “Bivens Action” or Bivens Suit is a type of action where the plaintiff pursues a federal officer for having violated rights protected by the United States Constitution.

The reason why this type of action is called “Bivens” action is that the origin of this suit comes from the matter Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

In this case, the U.S. Supreme Court found that should a federal officer violate a person’s rights under the Fourth Amendment, then the person may have a proper cause of action against the federal officer for damages resulting from an unlawful search and seizure.

In essence, the Supreme Court created a private damage action for constitutional torts committed by federal officials and employees to the extent such acts are not subject to the Federal Tort Claims Act (FTCA).

Bivens Action Definition

According to the Cornell Law School’s Legal Information Institute, Bivens actions are defined as follows:

A Bivens action generally refers to a lawsuit for damages when a federal officer who is acting in the color of federal authority allegedly violates the U.S. Constitution by federal officers acting.
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In other words, a person whose constitutional rights have been violated may have a cause of action directly and personally against the federal agent or official.

Bivens Case Facts

In the Bivens case, the Federal Bureau of Narcotics agents performed a search at Webster Biven’s home who was ultimately arrested without a warrant.

On this basis, criminal charges were filed against Bivens for drug possession.

Eventually, the US commissioner dismissed the charges against Bivens.

Following the dismissal, Bivens filed a lawsuit claiming that he suffered damages as a result of the violation of his Fourth Amendment freedom from unreasonable search and seizure.

The government argued that the Fourth Amendment does not provide the plaintiff with a cause of action.

The district court dismissed Biven’s action for lack of subject-matter jurisdiction and failure to state a claim.

The Second Circuit Court of Appeals confirmed the decision.

The matter ended up at the Supreme Court where the court established that a private right of action for monetary damages can be inferred when no other federal remedy is provided for constitutional right violations.

The Supreme Court based its decision on the notion that “for every wrong, there is a remedy”.

Bivens Burden of Proof

A Biven’s action is filed by the plaintiff against the federal law enforcement officer in his or her personal capacity.

As a result, since the action is not one against the United States, it is not barred on the basis of the rule of sovereign immunity.

For the plaintiff’s damage action to be successful, he or she must prove and establish that the federal officer violated certain constitutional rights.

When the constitutional violation is established, then the plaintiff must demonstrate that there were damages suffered.

The courts have found that a Bivens complaint is more deterring than an action filed under the FTCA as the federal agent is personally exposed to compensating the victim for damages, including possible punitive damages.

Bivens Exceptions

Since the Supreme Court’s judgment in 1971 in the matter of Bivens, many have filed Bivens claims against federal officers.

In this context, the courts have established certain exceptions.

In 1978, in the matter Butz v. Economou, the Supreme Court carved out the possibility for federal officials acting in adjudicatory functions to be pursued.

Then, in 1982, in the matter Nixon v. Fitzgerald, the Supreme Court established another exception indicating that the President of the United States should have absolute immunity from Bivens claims.

Absolute immunity is typically given to the President of the United States, judges, legislators, and prosecutors.

When acting within the scope of their function, the President, judges, prosecutors, and so on are protected against personal liability and lawsuits.

Qualified immunity is typically given to federal officials having discretionary functions within the federal government, administrative agency, or other.

Bivens Claim Takeaways 

So what is the legal definition of Bivens Action?

Let’s look at a summary of our findings.

Bivens Actions (Bivens Law)

  • A Bivens claim is a civil rights lawsuit filed by a person against a federal agent who has violated the person’s constitutional rights
  • Based on the implied cause of action rule, the courts can “imply” a right of action in cases when a person was wronged but there are no remedies possible 
  • A Bivens lawsuit can be filed before a district court directly against the federal officer (personally)
  • The plaintiff can seek damages such as compensation for medical bills, lost wages, reduced earning capacity, pain and suffering, lost reputation, attorney’s fees, punitive damages, and more
1983 claim 
Civil procedure 
Civil rights violations 
Compensatory damages
Constitutional torts
Criminal law 
Federal Tort Claims Act (FTCA)
Illegal search and seizure 
Individual rights 
Punitive damages 
Warrant requirements
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Absolute immunity
Constitutional law
Court procedures 
False arrest 
Fourth Amendment 
Inmate neglect 
Jail abuse 
Police misconduct 
Prison abuse
Probable cause 
Qualified immunity 
Ralph Civil Rights Act of 1976 
Sovereign immunity 
Tom Bane Civil Rights Act
Unlawful police detention
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