Supreme Court Weighs Whether Federal Officers Can Be Sued for Rights Violations

The Supreme Court hears arguments Monday in a case that could decide whether federal law enforcement officers can be held to account when they violate people's constitutional rights. The case comes from a federal prison in Hawaii, but its consequences reach far beyond prison walls, into American streets where immigration officers have been accused of beating and running over migrants.

Five years ago a gang riot broke out inside the prison. Kekai Watanabe was beaten with a makeshift weapon known as a "lock in a sock." When he complained of serious back pain, a nurse told him to "stop being a cry baby." Seven months later, doctors diagnosed a fractured tailbone. Watanabe, now 40, sued the nurse for violating his Eighth Amendment right against cruel and unusual punishment.

His claim rests on a 1971 decision known as Bivens, in which the Supreme Court recognized a right to sue federal officers for wrongdoing. In the years since, the justices have narrowed that right. Plaintiffs must show the facts of their case closely match earlier precedent. For federal prisons, the landmark case dates to 1980 and involved a prisoner who died from untreated asthma. The nurse's lawyers argue Watanabe's case is different enough, because he survived a gang attack in 2021, that it should be dismissed.

"What's at stake here is whether, basically, we as a country are going to hold federal law enforcement officers accountable when they violate clearly established constitutional rights," said Steve Vladeck, a Georgetown law professor who filed a friend-of-the-court brief. "I mean, it really is, I think, that stark." He said a world without Bivens is one in which federal officers "would enjoy absolute immunity."

Mary Hampton Mason, who worked nearly 35 years at the Justice Department in an office that evaluated these claims, urged the court to overrule Bivens. She said it gives plaintiffs false hope. "In the last 20 years, I'm only aware of one Bivens case that has resulted in a judgment for the plaintiffs that … didn't get reversed on appeal," she said, out of thousands filed. She argued that failures are usually institutional, rooted in agency culture and training, rather than the work of rogue officers.

Supporters of Watanabe say those numbers miss settlements and the deterrent effect of making officers personally liable. "That's why damages are so important," said Gregory Cui, an attorney at the MacArthur Justice Center, which says the grievance process inside federal prisons succeeds just 1 percent of the time for inmates. Legal experts note the court took the case while abuses by federal immigration agents are in the spotlight.

Both sides agree that Congress could settle the matter by giving people whose rights are violated by federal officers a clear way to sue. So far, lawmakers have not advanced legislation to do so. Vladeck said the prospect should be "especially terrifying" today and that even this Supreme Court should be worried about endorsing it.