RADIYA BUCHANAN, ET AL., APPELLANTS v. WILLIAM P. BARR, IN HIS INDIVIDUAL CAPACITY AS FORMER U.S. ATTORNEY GENERAL, ET AL., APPELLEES
No. 22-5133
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
June 23, 2023
Consolidated with 22-5139; Argued April 4, 2023
Scott Michelman and Lee R. Crain argued the causes for appellants. With them on the briefs were Anne Champion, Arthur B. Spitzer, Dennis Corkery, Jonathan M. Smith, Jon Greenbaum, Arthur Ago, David Brody, John A. Freeman, and David E. Kouba.
Scott F. Regan and Victoria Clark were on the brief for amici curiae Institute for Justice and Foundation for Individual Rights and Expression in support of appellants.
Gabriel K. Gillett, Ishan K. Bhabha, and Lauren J. Hartz were on the brief for amici curiae Bipartisan Former Members of Congress in support of appellants.
Sarah Helene Duggin, Donald Crane, Kwaku A. Akowuah, Tobias S. Loss-Eaton, and Lakeisha F. Mays were on the brief for amici curiae Clergy and Religious Institutions in support of appellants.
Brian J. Springer, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, and Mark B. Stern, Attorney.
Christopher A. Zampogna was on the brief for appellee Sean Kellenberger.
Before: WILKINS and WALKER, Circuit Judges, and SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge SENTELLE.
Concurring opinion filed by Circuit Judge WILKINS.
Concurring opinion filed by Circuit Judge WALKER.
SENTELLE, Senior Circuit Judge: Appellants, individual protestors and Black Lives Matter D.C., brought these consolidated actions against federal law enforcement officers, alleging that officers’ actions in clearing protestors from Lafayette Park in June 2020 violated their First, Fourth, and Fifth Amendment rights and seeking damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Appellees, former Attorney General Barr and various named U.S. Park Police officers, moved to dismiss the claims, arguing that a Bivens
I. Background
We review the district court‘s dismissal of Appellants’ claims de novo and accept as true all well-pleaded factual allegations. Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). Following the killings of George Floyd and Breonna Taylor, protestors, including Appellants, gathered in Lafayette Square across from the White House in Washington, D.C., to protest racism and police brutality. On the evening of June 1, 2020, at the order of Attorney General Barr, federal law enforcement officers began clearing protestors from the park using physical force, chemical irritants, and munitions. Officers fired tear gas, rubber bullets, flash grenades, and pepper spray into the crowd, hitting and injuring many. Appellants were struck with batons and rubber bullets, experienced adverse reactions to the chemical irritants, and suffered emotional and psychological harm. While officers cleared protestors from the park, President Trump was on the opposite side of the White House giving a speech in the Rose Garden. Minutes later, after protestors were out of the area, President Trump, Attorney General Barr, and other senior officials walked through Lafayette Park to St. John‘s Church and took a photograph.
Senior administration officials gave conflicting statements on the rationale for clearing the park, including that it was done to enforce the city‘s curfew, which was not until twenty-five minutes after officers began clearing the park; to expand the security perimeter surrounding the White House; to protect St. John‘s Church, which had suffered fire damage the day before but was not encompassed by the expanded perimeter; and to curtail ongoing violence. Appellants have alleged that the dispersal was done to facilitate the President‘s photo opportunity at St. John‘s Church.
Appellants sued, bringing, inter alia, Bivens claims to recover damages for the Government‘s alleged violations of their First, Fourth, and Fifth Amendment rights. The district court granted the Government‘s motions to dismiss the claims after holding that the claims arose in a new context and that three special factors—national security, Congress‘s involvement in the intersection between presidential security and protestors’ rights, and the availability of alternative remedies—counselled hesitation against extending Bivens to that context. This appeal followed.
II. Analysis
Starting with Bivens in 1971 and over the course of the following nine years, the Supreme Court has three times recognized that “victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.” Carlson v. Green, 446 U.S. 14, 18 (1980); see Bivens, 403 U.S. at 397; Davis v. Passman, 442 U.S. 228 (1979). Those three cases permitted claims for damages under the Fourth Amendment for an alleged violation of the prohibition against unreasonable searches and seizures, see Bivens, 403 U.S. at 389, under the Fifth Amendment for alleged sex discrimination by a Congressman, see Davis, 442 U.S. at 231, 248,
The Supreme Court has set out a two-part test to determine whether to permit a Bivens claim. First, courts must ask if the claim arises in a “new context” from the three previous Bivens claims recognized by the Supreme Court. Id. at 1803. If the context is not new, the claim can go forward. But if the context is new, courts move to the second step and ask whether, absent any “affirmative action by Congress,” there are any “special factors counselling hesitation” against extending Bivens to that context. Ziglar, 582 U.S. at 136 (quoting Carlson, 446 U.S. at 18). “If there is even a single ‘reason to pause before applying Bivens in a new context,’ a court may not recognize a Bivens remedy.” Egbert, 142 S. Ct. at 1803 (quoting Hernández v. Mesa, 140 S. Ct. 735, 743 (2020)). The guiding principle behind the inquiry is respect for the separation of powers and deference to Congress‘s preeminent role as the legislative body. See Egbert, 142 S. Ct. at 1803; see also Ziglar, 582 U.S. at 135–36.
Appellants’ primary argument focuses on Congress‘s enactment of the Westfall Act of 1988, which requires that the United States be substituted as the defendant in all tort claims against employees of the federal government acting in their official capacities. See
Appellants invoke the prior construction canon, arguing that the Westfall Act “left Bivens” as it had been interpreted by the Supreme Court and in notable Courts of Appeals decisions prior to 1988. Specifically, Appellants rely on this Court‘s 1977 decision in Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977), in which we affirmed the availability of a Bivens remedy for alleged First Amendment violations and upheld defendants’ liability under Bivens after individuals protesting the Vietnam War had been arrested on the steps of the Capitol, id. at 173–74, 194–96. Appellants argue that because Congress was presumably aware of that decision, by passing the Westfall Act and “le[aving] Bivens where it found it,” Hernández, 140 S. Ct. at 748 n.9, Congress affirmatively endorsed Dellums and the availability of Bivens remedies in analogous circumstances. And because, definitionally, there can be no “special factors counselling hesitation in the absence of affirmative action by
Appellants may be hoist with their own petard; if Congress is aware of and incorporates prior court decisions, then Congress also should have been aware of the Supreme Court‘s admonition against expanding the range of the Bivens remedy, as recognized by Supreme Court precedent at the time. Cf. Bush v. Lucas, 462 U.S. 367, 390 (1983) (declining to extend Bivens beyond circumstances recognized in prior Supreme Court cases); Chappell v. Wallace, 462 U.S. 296 (1983) (same); United States v. Stanley, 483 U.S. 669 (1987) (same). As Supreme Court precedent makes clear, any new Bivens claim must still “satisf[y] the ‘analytic framework’ prescribed by the last four decades of intervening case law.” Egbert, 142 S. Ct. at 1809 (quoting Ziglar, 582 U.S. at 139); cf. Hernández, 140 S. Ct. at 748 n.9 (“[The Westfall Act‘s exception for Bivens claims] is not a license to create a new Bivens remedy in a context [the Supreme Court] ha[s] never before addressed.” (citation omitted)); Meshal v. Higgenbotham, 804 F.3d 417, 428 (D.C. Cir. 2015) (“[U]ncertain interpretations of what Congress did in . . . 1988 cannot overcome the weight of authority against expanding Bivens.“).
Turning then to that framework, we hold that Appellants’ claims arise in a new context and that national security is a special factor counselling hesitation against extending Bivens to that context. First, neither party contends that these claims do not arise in a new context, and for good reason. What constitutes a “new context” is exceedingly broad. “If the case is different in a meaningful way from previous Bivens cases decided by [the Supreme] Court, then the context is new.” Ziglar, 582 U.S. at 139. Examples of meaningful differences include “the rank of the officers involved[,] the constitutional right at issue,” and “the risk of disruptive intrusion by the Judiciary into the functioning of other branches.” Id. at 139–40. Appellants’ First, Fourth, and Fifth Amendment claims satisfy this test. The Supreme Court has never recognized the availability of Bivens claims for First Amendment violations. See Egbert, 142 S. Ct. at 1807 (“[W]e have never held that Bivens extends to First Amendment claims.” (citation omitted)); Bush, 462 U.S. at 390. Appellants’ Fourth and Fifth Amendment claims likewise arise in a new context because the clearing of protestors from a public park by federal law enforcement officers is notably different from an unlawful search and arrest by federal narcotics officers, see Bivens, 403 U.S. at 389–90, and from sex discrimination by a Congressman, see Davis, 442 U.S. at 231.
Claims that arise in a new context are not necessarily precluded, however, so long as there are no “special factors counselling hesitation” against extending Bivens to that context. Ziglar, 582 U.S. at 136 (quoting Carlson, 446 U.S. at 18). As with the “new context” test, what constitutes a “special factor” is interpreted broadly. See Egbert, 142 S. Ct. at 1805 (“‘A court inevitably will “impair” governmental interests, and thereby frustrate Congress’ policymaking role, if it applies the “special factors” analysis’ at such a narrow level of
As the Supreme Court has made clear in recent years, “a Bivens cause of action may not lie where . . . national security is at issue.” Egbert, 142 S. Ct. at 1805; see Hernández, 140 S. Ct. at 746–47. Appellees argue that national security concerns regarding the safety of the President and the area surrounding the White House justify finding a special factor in this case. Appellants rely on their well-pleaded allegation that “the law-abiding, peaceful protestors posed no threat to the President.” Appellants’ Opening Br. at 44. But Appellants misunderstand the applicable standard. Officers need not have been responding to an ongoing or imminent threat to national security to invoke national security as a special factor. See Hernández, 140 S. Ct. at 746 (“The question is not whether national security requires such conduct . . . .” (emphasis added)). Instead, courts ask whether they “should alter the framework established by the political branches” for handling cases with possible national security implications. Id. Because “[n]ational-security policy is the prerogative of the Congress and President,” the answer most often will be no. Ziglar, 582 U.S. at 142.
Under any of the proffered explanations given for clearing protestors from Lafayette Park, Appellees’ actions implicate national security under the Supreme Court‘s broad understanding of that special factor. While we recognize that Lafayette Square is a “unique situs” for First Amendment activity, “it cannot be denied that a public gathering presents some measure of hazard to the security of the President and the White House.” Quaker Action Grp. v. Morton, 516 F.2d 717, 725, 731 (D.C. Cir. 1975). Given the nation‘s “overwhelming . . . interest in protecting the safety of its Chief Executive,” Watts v. United States, 394 U.S. 705, 707 (1969), officers in the area surrounding the White House and the President must be able to act without hesitation. But faced with “[t]he risk of personal damages liability,” officers are more likely “to second-guess difficult but necessary decisions concerning national-security policy,” Ziglar, 582 U.S. at 142, including decisions regarding presidential and White House security. Because “regulating the conduct of [law enforcement officers near the White House] unquestionably has national security implications, the risk of undermining [presidential and White House] security provides reason to hesitate before extending Bivens into this field.” Hernández, 140 S. Ct. at 747.
Appellants caution that such a ruling creates a “Constitution-free zone” by precluding Bivens claims for any constitutional violation occurring in Lafayette Square due to its sensitive location, Appellants’ Opening Br. at 45, and treats national security as a “talisman used to ward off inconvenient claims,” Ziglar, 582 U.S. at 143. Without purporting to decide the availability of any Bivens claim arising from events in Lafayette Park under other circumstances, we note that to the extent Appellants’ fears come to fruition, it is a result of heeding the Supreme Court‘s admonition to “ask ‘more broadly’ if there is any reason to think that ‘judicial intrusion’ into a given field might be ‘harmful’ or ‘inappropriate.‘” Egbert, 142 S. Ct. at 1805 (alteration omitted) (quoting Stanley, 483 U.S. at 681) (emphasis added). Finally, it bears mention that First Amendment activity in Lafayette Park remains constitutionally protected.
Because the presence of one special factor is sufficient to preclude the availability of a Bivens remedy, we do not reach Appellees’ other special factors arguments regarding the availability of alternative remedies, congressional involvement in the intersection between presidential security and protestors’ rights, the political branches’ activity in investigating the events underlying Appellants’ claims, and the risk that discovery might expose “sensitive Executive Branch communications between high-ranking officials.” Gov‘t Appellees’ Br. at 24–25; see Egbert, 142 S. Ct. at 1803 (“‘Even a single sound reason to defer to Congress’ is enough to require a court to refrain from creating such a remedy.” (alteration omitted) (quoting Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931, 1937 (2021))).
III. Conclusion
Mindful of our obligation to faithfully apply Supreme Court precedent and avoid arrogating legislative power, we affirm.
WILKINS, Circuit Judge, concurring: I join the majority opinion in full. Supreme Court precedent requires us to affirm the District Court‘s dismissal of Appellants’ Bivens claims. As our opinion explains, those claims arise in a “new context,” and the “special factor” of national security precludes us from extending Bivens to that new context. I write separately because in my view, applying that precedent here would seem to undermine the very separation-of-powers concerns that underlie modern Bivens doctrine in the first place.
The Supreme Court has long “presume[d] that Congress[,]” when it legislates, is “thoroughly familiar with . . unusually important precedents” from not only the Supreme Court but also the Courts of Appeals. Cannon v. Univ. of Chi., 441 U.S. 677, 698–99 & n. 23 (1979). Examples abound across a wide range of statutory contexts. For instance, in construing the Copyright Act‘s safe-harbor provision, the Court recently found “no indication that Congress intended to alter” a similar rule established by prior lower court decisions. Unicolors, Inc. v. H&M Hennes & Mauritz, LP, 142 S. Ct. 941, 947–48 (2022) (“When Congress codifies a judicially defined concept, it is presumed, absent an express statement to the contrary, that Congress intended to adopt the interpretation placed on that concept by the courts.” (quoting Davis v. Mich. Dep‘t of Treasury, 489 U.S. 803, 813 (1989))). Similarly, in interpreting the scope of a judicial review provision of the Immigration and Nationality Act, the Court “assume[d] that Congress” was “aware” of “lower court precedent” regarding the scope of habeas review and intended its enactment to conform with that view. Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1072 (2020). When Congress amended a provision of the Bankruptcy Code, the Court subsequently reasoned that Congress was “presumptively . . . aware” of prior lower court opinions interpreting the same phrase and that Congress therefore “intended it to retain its established meaning.” Lamar, Archer & Cofrin, LLP v. Appling, 138 S. Ct. 1752, 1762 & n.3 (2018). The Court has made the same presumption in interpreting Title VII, see Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 & n.8 (1975), Title IX, see Cannon, 441 U.S. at 698 n.23, the Americans with Disabilities Act, see Lorillard v. Pons, 434 U.S. 575, 580–81 (1978), and the National Labor Relations Act, see NLRB v. Gullett Gin Co., 340 U.S. 361, 365–66 (1951). This presumption holds for not only civil but also criminal statutes, see Abuelhawa v. United States, 556 U.S. 816 (2009), and equally when Congress does not act, i.e., when it “retain[s] . . . statutory text” that has been construed by the Courts of Appeals. Tex. Dep‘t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 535–37 (2015).
Applying that rule here, Congress was presumably aware of our decision in Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977), when it enacted the Westfall Act in 1988, which preserved a damages remedy against individual federal officers for constitutional violations.
If we are also to presume, in the words of the Supreme Court, that the Westfall Act “left Bivens where it found it” in 1988, Hernandez v. Mesa, 140 S. Ct. 735, 748 n.9 (2020), then Congress must have intended to leave Dellums v. Powell where it found it—that is, as good law. There is no compelling reason to conclude otherwise. The Supreme Court denied certiorari in Dellums, see 438 U.S. 916 (1978), and no decision prior to 1988, either of that Court or our court, cast doubt on Dellums‘s validity.1 To be sure, and as the majority opinion acknowledges, by 1988 the Court had declined several times to expand the range of the Bivens remedy “beyond circumstances recognized in prior Supreme Court cases.” Maj. Op. 7. But that does not undermine the key point. Declining to discuss important lower court precedent is not the same as calling that precedent into question or sub silentio overruling it. More importantly, it is even more unclear that Congress would have understood any of the Court‘s pre-1988 cases to have that effect, that is, to render wholly irrelevant all existing lower
Thus, deferring to Congress—as the Supreme Court has repeatedly urged courts to do in deciding the viability of Bivens claims—would counsel strongly in favor of recognizing such claims in cases analogous to Dellums. See Egbert v. Boule, 142 S. Ct. 1793, 1802–04 (2022) (“[T]he most important question is who should decide whether to provide for a damages remedy, Congress or the courts? . . . If there is a rational reason to think that the answer is ‘Congress‘—as it will be in most every case, . . . no Bivens action may lie.” (internal quotations and citations omitted)); Hernández, 140 S. Ct. at 750; Ziglar v. Abbasi, 582 U.S. 120, 135–36 (2017). As Appellants and the former members of Congress amici argue, it is hard to imagine a case more analogous to Dellums than this one. The following describes equally both cases: Plaintiffs allege that federal officers used violence to clear a peaceful protest in a quintessential public forum for political speech in our nation‘s capital, for viewpoint-discriminatory reasons.
The problem for Appellants with this line of reasoning is that the Supreme Court‘s “new context” test renders irrelevant all pre-1988 lower court decisions recognizing Bivens claims, including Dellums. The “new context” inquiry considers only prior Supreme Court—not lower court—precedent. Egbert, 142 S. Ct. at 1803; Loumiet v. United States, 948 F.3d 376, 382 (D.C. Cir. 2020) (“[T]he new-context analysis may consider only Supreme Court decisions . . .“). In turn, courts may not “justify a Bivens extension based on parallel circumstances” with pre-1988 cases. Egbert, 142 S. Ct. at 1809 (internal quotations omitted). We must follow that precedent. I simply observe that here, that precedent “is in tension with the Court‘s insistence that ‘prescribing a cause of action is a job for Congress, not the courts.‘” See Egbert, 142 S. Ct. at 1823 (Sotomayor, J., concurring in the judgment in part and dissenting in part) (quoting majority opinion).
WALKER, Circuit Judge, concurring:
Protesters say federal officers violated their constitutional rights by forcibly dispersing a demonstration outside the White House. So they sued for damages, claiming that the Constitution gives them permission to bring their suit. See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
But as the Court‘s opinion explains, the protesters’ claims do not fit any recognized cause of action under the Constitution. And gone are the days when federal courts could invent new remedies to redress the protesters’ injuries. See Egbert v. Boule, 142 S. Ct. 1793, 1803 (2022).
Yet that does not mean the protesters have no way to recover. For most of our history, those injured by federal officers’ unconstitutional conduct could sue for damages in state court. The Framers saw state common-law suits as an important check on federal misconduct.
Some have assumed that those suits are now precluded by the Westfall Act. It bars many “civil action[s] . . . for money damages” filed to redress “injury or loss . . . resulting from” federal officers’ conduct.
That exception might preserve state tort suits “brought” to remedy constitutional
I. Tort Suits Against Federal Officers Today
Tort suits against federal officers are channeled through the Federal Tort Claims Act.
But the FTCA‘s remedies are limited. It puts procedural and substantive limits on claims that would otherwise be available under state law. See, e.g.,
To illustrate how restrictive the FTCA can be, consider an example. A federal prosecutor maliciously prosecutes a plaintiff, forcing him to defend against made-up charges. See Thompson v. Clark, 142 S. Ct. 1332 (2022) (Fourth Amendment protects against malicious prosecution). Can the plaintiff sue for damages under the FTCA? Probably not. He can‘t bring a claim directly for the constitutional violation “because constitutional claims are not cognizable under the FTCA.” Harper v. Williford, 96 F.3d 1526, 1528 (D.C. Cir. 1996). And even if he repackages his claim as a state-law suit, that avenue isn‘t available either. See
The upshot is that the FTCA leaves some plaintiffs with no remedy—even plaintiffs who have been intentionally and unconstitutionally harmed by federal officers. See Byrd v. Lamb, 990 F.3d 879, 883 n.8 (5th Cir. 2021) (Willett, J., concurring) (“For victims” of excessive force, the FTCA “offers no protection at all.“).
That gap was temporarily filled, in part, by Bivens suits—damages actions implied under the Constitution. But the modern Supreme Court has all-but removed that option. Since 1980, the Court has refused to expand Bivens beyond three narrow contexts. See Egbert v. Boule, 142 S. Ct. 1793, 1802 (2022) (describing those contexts); Maj. Op. 4-5 (same). Over and over again, the Court has said judges should not extend Bivens when “there is any reason to think that Congress might be better equipped to create a damages remedy.” Id. at 1803 (emphasis added).
Does that leave today‘s Plaintiffs with no remedy for federal officers’ allegedly unconstitutional conduct? They say it does. I‘m not so sure. For most of our history, state tort suits were the primary mechanism for holding federal officers accountable. And an overlooked exception to the Westfall Act may allow some of those suits to proceed today.
II. Remedies Against Federal Officers at the Founding
At the Founding, constitutional claims against federal officials were litigated in state tort suits. Hernández v. Mesa, 140 S. Ct. 735, 751 (2020) (Thomas, J., concurring). In those suits, “[t]he ultimate issue before the court concerned the federal Constitution,” but the cause of action was supplied by state law. Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425, 1506 (1987).
Those suits would proceed in three steps:
- Imagine a federal officer unlawfully searches a house. To get damages, the owner would file a state-law trespass suit against the officer.
- As a defense, the officer would argue that his actions were authorized by a federal statute, a warrant, or a command from a superior officer.
- To defeat that defense, the owner would argue that any purported federal authorization was unconstitutional.2
Little v. Barreme is a good example. 6 U.S. (2 Cranch) 170 (1804). Following instructions from President Adams to seize ships going to or coming from French ports, a U.S. Navy captain captured a Danish ship. Id. at 176-78. The owner sued in trespass. The Supreme Court held that the captain was liable because the President‘s instructions were not authorized by statute. Id. at 179. Because the instructions were invalid, they could not “legalize an act” that was otherwise “a plain trespass.” Id.; see also Solcum v. Mayberry, 15 U.S. (2 Wheat) 1, 10 (1817) (“if the seizure be finally adjudged wrongful, and without reasonable cause, [the victim] may proceed, at his election, by a suit at common law . . . for damages for the illegal act“).
The ratification debates suggest that the Framers thought state tort suits would be an important check against federal misconduct. In North Carolina, Archibald Maclaine said a citizen “would have redress in the ordinary courts of common law” after a federal “deput[y]” followed the President‘s unlawful instructions and “distressed” the citizen. 4 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, 47 (2d ed. 1836). And Richard Dobbs Spaight agreed that “it was very certain and clear that, if any man [i]s injured by an officer of the United States, he could get redress by a suit at law.” Id. at 36-37. Relying on
Reflecting that approach, the First Congress understood “that under the new federal system, litigants would . . . be able to file common-law claims against federal officials for wrongdoing in the course of their duties.” Jennifer Mascott, The Ratifiers’ Theory of Officer Accountability, 29 (forthcoming), https://perma.cc/AS4U-56WA. So when Congress passed the First Judiciary Act, it required federal marshals to assume personal liability for the misdeeds of their deputies by posing “sureties . . . in the sum of twenty thousand dollars,” while leaving deputies’ liability to state law.
Using tort suits to hold executive officers accountable was a model borrowed from England. In two famous unlawful-search cases, the English courts held Crown officials liable for trespass, awarding the plaintiffs damages. Wilkes v. Wood (1763) 98 Eng. Rep. 489; Entick v. Carrington (1765) 95 Eng. Rep. 807. Those cases are important today because they “profoundly influenced” the drafting of the Fourth Amendment. City of West Covina v. Perkins, 525 U.S. 234, 247 (1999) (Thomas, J., concurring).
That background may explain why the Bill of Rights did not contain an express cause of action. The Framers likely expected our newly guaranteed rights to be secured by old common-law actions. Federal officers would not be above the law because they would be subject to the same common law as private citizens. Amar, supra at 1507 (the Bill of Rights presupposed “a general backdrop of private law” causes of action to vindicate “primary rights of personal property and bodily liberty“).3
III. The Westfall Act‘s Constitutional-Tort Exception
If federal officers had been above the law at the Founding, the new rights won at Yorktown and guaranteed by the Bill of Rights would have been significantly declawed. For that reason, some judges and scholars have said prohibiting all damages actions against federal officers might be a constitutional problem today.4 But those concerns may be premature. It‘s possible
Recall that the Westfall Act generally prohibits tort victims from bringing state tort suits against federal officers, forcing victims instead to pursue the limited remedies in the FTCA.
On a broad reading of the exception, a suit might count as “brought for a violation of the Constitution” if its purpose is to remedy a constitutional violation. For instance, a state trespass suit could proceed if its goal was to remedy an unconstitutional search. That interpretation arguably tracks the ordinary meaning of the phrase “brought for.” Courts have long used it to describe the goal of a suit, not the cause of action. See, e.g., Escanaba & Lake Michigan Transportation Co. v. City of Chicago, 107 U.S. 678, 684 (1883) (describing a suit as “brought for damages“); see also Carlos M. Vázquez & Stephen I. Vladeck, State Law, the Westfall Act, and the Nature of the Bivens Question, 161 U. Pa. L. Rev. 509, 570-77 (2013) (proposing a similar interpretation).
Even if that reading is too broad, the exception may still allow some suits to proceed. On a narrower reading, a suit might count as “brought for a violation of the Constitution” if a constitutional violation is part of the plaintiff‘s cause of action. Though that reading would preclude most state tort suits—a constitutional violation is not part of a trespass action, for example—some suits might still fit the bill. In many states plaintiffs can file an “action on the statute,” alleging a “cause of action in tort resulting from activity in violation of a legislatively created duty or standard.” Vázquez & Vladeck, supra at 538-39 (cleaned up). A plaintiff might use that cause of action to allege that a federal officer violated the Constitution. And if current state laws do not meet the exception, nothing would stop a state from creating a new cause of action allowing plaintiffs to directly allege federal constitutional violations. See Akhil Reed Amar, Using State Law to Protect Federal Constitutional Rights: Some Questions and Answers About Converse-1983, 64 U. Colo. L. Rev. 159, 160 (1993); see also Thomas Koenig & Christopher D. Moore, Of State Remedies and Federal Rights, 36 (forthcoming), https://perma.cc/6LH6-6TM2 (“the text of the Westfall Act counsels in favor of reading” the constitutional-tort exception “to extend to state civil actions brought for federal constitutional violations“).
True, until now, the Westfall Act‘s constitutional-tort exception has been read more narrowly than that. The Supreme Court has said the exception “simply left Bivens where it found it,” ensuring that Bivens actions weren‘t precluded by the Westfall Act. Hernandez v. Mesa, 140 S. Ct. 735, 748 n.9 (2020). But that does not foreclose the possibility that the Act could also let some state tort suits proceed.5
Finally, the Westfall Act‘s historical context provides no clear evidence that Congress wished to upset the long tradition of using state tort actions to police constitutional violations. The Act abrogated Westfall v. Erwin, 484 U.S. 292, 297-98 (1988). There, the Supreme Court refused to grant federal employees’ absolute immunity from state tort suits. Because that decision “eroded the common law tort immunity previously available to Federal employees,” Congress passed the Westfall Act to funnel future tort claims through the FTCA.
* * *
I‘m not certain whether the Westfall Act is best read to allow state tort suits for constitutional injuries. But that reading finds support in the text of the statute, accords with Founding-era principles of officer accountability, and closes a remedial gap—ensuring relief for those injured by federal officers’ unconstitutional conduct. For those reasons, I hope the Act gets close attention in an appropriate case.
If the Westfall Act does not preclude state tort suits against federal officers for constitutional violations, the protesters in this case may yet seek a remedy. They allege that federal officers violated the Fourth Amendment by using “excessive force” against them. JA 173. DC law provides a cause of action for tortious assault and battery. See District of Columbia v. Chinn, 839 A.2d 701, 705 (D.C. 2003). The protesters could thus file a tort action,
But the protesters did not file those claims in this case. And I agree with the Court that their Bivens claims fail.