Amicus Curiae Brief — Hamdi Mohamud, Petitioner v. Heather Weyker

No. 21-187

IN THE

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_______________

HAMDI MOHAMUD,

Petitioner,

v.

HEATHER WEYKER,

Respondent.

_______________

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

_______________

BRIEF OF THE AMERICAN CIVIL LIBERTIES

UNION, CATO INSTITUTE, DKT LIBERTY

PROJECT, GOLDWATER INSTITUTE, LAW

ENFORCEMENT ACTION PARTNERSHIP,

AND NEW CIVIL LIBERTIES ALLIANCE AS

AMICI CURIAE IN SUPPORT OF PETITIONER

_______________

THEANE EVANGELIS

Counsel of Record

SAMUEL ECKMAN

JAMES TSOUVALAS

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071-3197

(213) 229-7804

tevangelis@gibsondunn.com

Counsel for Amici Curiae

QUESTION PRESENTED

Whether a constitutional remedy is available

against federal officers for individual instances of law

enforcement overreach in violation of the Fourth

Amendment.

ii

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................... 3

ARGUMENT ............................................................... 5

I.

BIVENS REFLECTS A NATURAL

DEVELOPMENT IN THE LAW DESIGNED

TO PROTECT CITIZENS’ FOURTH

AMENDMENT RIGHTS. ................................... 5

II.

WHERE IT IS AVAILABLE, BIVENS IS

AN EFFECTIVE TOOL FOR PROTECTING

FOURTH AMENDMENT RIGHTS. ..................... 9

III. BIVENS IS AN ESPECIALLY IMPORTANT

TOOL AT THIS MOMENT. ............................. 16

IV. BIVENS DOES NOT POSE AN UNDUE

THREAT TO FEDERAL LAW

ENFORCEMENT............................................ 21

CONCLUSION .......................................................... 24

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Bivens v. Six Unknown Agents of Fed.

Bureau of Narcotics,

403 U.S. 388 (1971) .................................... 3, 6, 7, 8

Butz v. Economu,

438 U.S. 478 (1978) .............................................. 23

City of Los Angeles v. Lyons,

461 U.S. 95 (1983) .................................................. 7

City of Riverside v. Rivera,

477 U.S. 561 (1986) .............................................. 13

Hernandez v. Mesa,

140 S. Ct. 735 (2020) ............................................ 21

Lankford v. Gelson,

364 F.2d 197 (4th Cir. 1966) .................................. 6

United States v. Peltier,

422 U.S. 531 (1975) ................................................ 6

Weeks v. United States,

232 U.S. 383 (1914) ................................................ 6

Williams v. Florida,

399 U.S. 78 (1970) ................................................ 23

Ziglar v. Abbasi,

137 S. Ct. 861 (2017) ............................................ 21

iv

TABLE OF AUTHORITIES (continued)

Page(s)

Statutes

42 U.S.C. § 1983 ........................................................ 22

Other Authorities

Aimee Ortiz, Confidence in Police Is at

Record Low, Gallup Survey Finds,

NY TIMES (Aug. 12, 2020),

https://tinyurl.com/dh00vlnt ................................ 18

Alexander A. Reinert, Measuring the

Success of Bivens Litigation and Its

Consequences for the Individual Liability

Model, 62 STAN. L. REV. 809 (2010) ................. 9, 10

Brandon Hasbrouck, Abolishing Racist

Policing With the Thirteenth Amendment,

67 UCLA L. REV. 1108 (2020) .............................. 17

Carlos M. Vasquez & Stephen I. Vladeck,

State Law, the Westfall Act, and the

Nature of the Bivens Question, 161 U.

PA. L. REV. 509 (2013) ........................................ 7, 8

Catherine Fisk & Erwin Chemerinsky,

Civil Rights Without Remedies:

Vicarious Liability Under Title VII,

Section 1983, and Title IX, 7 WM. &

MARY BILL RTS. J. 755 (1999) .............................. 13

v

TABLE OF AUTHORITIES (continued)

Page(s)

Cheryl Corley, Police Settlements: How

the Cost of Misconduct Impacts

Cities and Taxpayers, NPR (Sept. 19,

2020), https://tinyurl.com/2enbq5dl .................... 14

Elias R. Feldman, Strict Tort Liability

for Police Misconduct, 53 COLUM. J.

L. & SOC. PROBS. 89 (2019) .................................. 17

Importance of Police-Community

Relationships and Resources for

Further Reading, Department of

Justice, https://tinyurl.com/1rg21btx .................. 19

In Pursuit of Peace: Building PoliceCommunity Trust to Break the Cycle

of Violence, Giffords Law Center (Jan.

2020), https://tinyurl.com/7yhf42y6 .............. 19, 20

J. Gabriel Ware, Crime Victims Don’t

Report if They Don’t Trust Cops:

Study, CRIME REPORT (Dec. 13,

2018), https://tinyurl.com/yq3clz8m .................... 19

James E. Pfander, et al., The Myth of

Personal Liability: Who Pays When

Bivens Claims Succeed, 72 Stanford

L. Rev. 561 (2020) ................................................ 22

vi

TABLE OF AUTHORITIES (continued)

Page(s)

James E. Pfander, Iqbal, Bivens, and

the Role of Judge-Made Law in

Constitutional Litigation, 114 PENN

ST. L. REV. 1387 (2010) ........................................ 10

Joanna C. Schwartz, How Governments

Pay: Lawsuits, Budgets, and Police

Reform, 63 UCLA L. REV. 1144 (2016) ................ 14

Joanna C. Schwartz, What Police Learn

From Lawsuits, 33 CARDOZO L. REV.

841 (2012) ................................................. 11, 12, 13

Jocelyn Fontaine, et al., Mistrust and

Ambivalence Between Residents and

the Police: Evidence From Four

Chicago Neighborhoods, URBAN

INSTITUTE (Aug. 2017),

https://tinyurl.com/1xpfnii9 ................................. 18

John C. Jeffries, Jr., The Liability Rule

For Constitutional Torts, 99 VA. L.

REV. 207 (2013) .................................................... 13

Kit Ramgopal & Brenda Breslauer, The

Hidden Hand That Uses Money to

Reform Troubled Police

Departments, NBC NEWS (July 19,

2020), https://tinyurl.com/39scutxe ..................... 15

Margo Schlanger, Inmate Litigation,

116 HARV. L. REV. 1555 (2003) ............................ 14

vii

TABLE OF AUTHORITIES (continued)

Page(s)

Martin Kaste, When It Comes to Police

Reform, Insurance Companies May

Play a Role, NPR (Apr. 1, 2016),

https://tinyurl.com/szz6qgri ................................. 15

Megan Brenan, Americans’ Confidence

in Major U.S. Institutions Dips,

GALLUP (July 14, 2021),

https://tinyurl.com/27pxd8j9................................ 18

Melissa Mortazavi, Tort as Democracy:

Lessons from the Food Wars, 57

ARIZ. L. REV. 929 (2015) ....................................... 20

Myriam E. Gilles, In Defense of Making

Government Pay: The Deterrent

Effect of Constitutional Tort

Remedies, 35 GA. L. REV. 845 (2001) ................... 11

New Era of Public Safety: A Guide to

Fair, Safe, and Effective Community

Policing, The Leadership Conference

on Civil and Human Rights,

https://tinyurl.com/5dbqrewp ........................ 18, 20

New Era of Public Safety: An Advocacy

Toolkit for Fair, Safe, and Effective

Community Policing, The Leadership

Conference on Civil and Human Rights

(2019), https://civilrights.org/wpcontent/uploads/Toolkit.pdf ................................. 17

viii

TABLE OF AUTHORITIES (continued)

Page(s)

Public Trust and Law Enforcement—A

Discussion for Policymakers,

Congressional Research Service (July

13, 2020), https://tinyurl.com/3rm3mfpy ............ 20

Rachel B. Doyle, How Insurance

Companies Can Force Bad Cops Off

the Job, THE ATLANTIC (June 10,

2017), https://tinyurl.com/10b93ra7 .................... 15

Richard H. Fallon, Jr. & Daniel J.

Meltzer, New Law, Non-Retroactivity,

and Constitutional Remedies, 104

HARV. L. REV. 1731 (1991) ................................... 16

Stephen I. Vladeck, The Disingenuous

Demise and Death of Bivens, CATO

SUP. CT. REV. 2019–2020 263 (2020) ..................... 8

Theodore Eisenberg, Four Decades of

Federal Civil Rights Litigation, 12 J.

Empirical Legal Stud. 4 (2016)............................ 22

U.S. Attorney’s Office for the Western

District of Tennessee, Federal

Agencies and Law Enforcement

Partners (July 1, 2021),

https://tinyurl.com/kwccdv28............................... 23

INTEREST OF AMICI CURIAE1

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with

nearly two million members and supporters dedicated

to the principles of liberty and equality embodied in

the Constitution and our nation’s civil-rights

laws. Since its founding more than 100 years ago, the

ACLU has appeared before this Court in numerous

cases, both as direct counsel and as amicus curiae.

The Cato Institute is a nonpartisan public-policy

research foundation established in 1977 and dedicated to advancing the principles of individual liberty,

free markets, and limited government. The Cato Institute’s Project on Criminal Justice was founded in

1999 and focuses on the proper role of the criminal

sanction in a free society, the scope of substantive

criminal liability, the proper and effective role of police

in their communities, the protection of constitutional

and statutory safeguards for criminal suspects and

defendants, citizen participation in the criminal justice system, and—of particular relevance in this

case—accountability for law enforcement officers.

The DKT Liberty Project was founded in 1997 to

promote individual liberty against encroachment by

all levels of government. The not-for-profit Liberty

1

Pursuant to Rule 37.6, counsel for amici curiae states that no

counsel for a party authored this brief in whole or in part and no

one other than the amici and its counsel made a monetary contribution to fund the preparation or submission of this brief. Pursuant to Rule 37.2, counsel for amici curiae states that counsel

for Petitioner and Respondents received timely notice of intent

to file this brief, and each has consented in writing to the filing

of this brief.

2

Project advocates vigilance over regulation of all

kinds, especially restrictions of individual civil liberties that threaten the reservation of power to the citizenry that underlies our constitutional system.

The Goldwater Institute was established in 1988

as a nonpartisan public policy foundation dedicated to

advancing the principles of limited government, economic freedom, and individual responsibility through

litigation, research, and policy briefing. Through its

Scharf–Norton Center for Constitutional Litigation,

the Goldwater Institute litigates cases and files amicus briefs when its or its clients’ objectives are directly

implicated.

The Law Enforcement Action Partnership (LEAP)

is a nonprofit composed of police, prosecutors, judges,

corrections officials, and other criminal-justice professionals who seek to improve public safety, promote alternatives to arrest and incarceration, address the

root causes of crime, and heal police–community relations through sensible changes to our criminal-justice

system.

The New Civil Liberties Alliance (NCLA) is a nonpartisan, nonprofit civil-rights organization devoted

to defending constitutional freedoms from violations

by the administrative state. The “civil liberties” of the

organization’s name include rights at least as old as

the U.S. Constitution itself, such as the right to be free

from unreasonable searches and seizures. Yet these

self-same rights are also very contemporary—and in

dire need of renewed vindication—precisely because

Congress, administrative agencies, and even sometimes the courts have neglected them for so long.

Bivens helps constrain unconstitutional behavior by

3

federal officers. Abolishing it before it has been replaced with a superior means to ensure accountability

would exacerbate the administrative state’s lack of respect for civil liberties.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Amici comprise a diverse group of educational,

civic, and law-enforcement organizations that span

the ideological spectrum. But there is at least one

thing they share in common: a steadfast belief that the

Fourth Amendment’s prohibition against unreasonable searches and seizures lies at the heart of American

freedom, and that the rigorous enforcement of this

prohibition is imperative to preserving our system of

limited government.2

The Eighth Circuit’s decision in this case undermines the enforcement of the fundamental rights embodied in the Fourth Amendment by effectively abolishing citizens’ ability to bring damages actions

against federal officers who violate those rights.

When this Court first authorized citizens to bring

such actions 50 years ago in Bivens v. Six Unknown

Agents of Fed. Bureau of Narcotics, 403 U.S. 388

(1971), it recognized that earlier judge-made rules designed to constrain Fourth Amendment violations

(namely, the exclusionary rule) had proven woefully

2

Several amici submitted a brief as amici curiae in support of

a petition for writ of certiorari in Oliva v. Nivar, No. 20-1060

(S. Ct. June 17, 2021), cert. denied ___ S. Ct. ___ (2021), reh’g

denied (Aug. 2, 2021), which presented a materially identical

question as the petition in this case. Amici are also submitting

a similar brief as amici curiae in Byrd v. Lamb, No. 21-184 (S. Ct.

Aug. 6, 2021), which presents the same question as Oliva.

4

inadequate to the task. In response, the Court built

upon a common law tradition predating the Founding

that authorized private parties to sue government officials who infringe their rights.

Despite the erosion of its scope in the intervening

half century, Bivens has proven a powerful tool for policing the Fourth Amendment’s bounds on federal

power where it is available. Recent evidence shows

that Bivens actions are much more likely to be meritorious than previously thought (especially compared

to other forms of civil rights litigation), while courts

have proven more than capable of screening unmeritorious claims at little or no cost to federal defendants

or the judicial system. And the benefits of Bivens actions redound not only to the individuals whose

Fourth Amendment rights are vindicated, but to society at large. Indeed, Bivens actions serve a wide array

of systemic interests, from exposing individual misconduct and institutional deficiencies in government

agencies to incenting policymakers to adopt reforms

to prevent future abuses.

Effectively abandoning Bivens in the search-andseizure context in which it arose is especially ill advised at the present time. Public trust in law enforcement is at a historic low, straining the relationship between officers and the communities they serve and reducing citizens’ willingness to cooperate with law enforcement. Bivens is an important tool for repairing

this relationship, providing a vehicle through which

accusations of federal misconduct may be heard and

redressed in an open and neutral forum. Denying aggrieved individuals a day in court and sweeping their

allegations under the rug will only exacerbate public

distrust in law enforcement, to the detriment of public

5

officials and the communities who depend on them

alike.

There is no reason to believe that Bivens will unduly impede federal officers’ ability to do their jobs.

Even where Bivens is available, qualified immunity

shields federal officers from personal liability unless

they violate clearly established law, just as it does for

state officers in actions brought under 42 U.S.C.

§ 1983. In fact, abandoning Bivens will serve only to

provide federal officers with an additional layer of immunity not available to state officials, inverting the

original understanding of the Constitution as a check

primarily on federal power.

This Court should grant certiorari to reaffirm the

continuing importance of Bivens in our constitutional

framework.

ARGUMENT

I.

BIVENS REFLECTS A NATURAL DEVELOPMENT IN

THE LAW DESIGNED TO PROTECT CITIZENS’

FOURTH AMENDMENT RIGHTS.

More than a century ago, this Court recognized

that the Fourth Amendment’s guarantee against unreasonable searches and seizures would be little more

than a parchment promise without a powerful enforcement mechanism. The mechanism developed by

the Court has since become a cornerstone of criminal

procedure: the exclusionary rule. Reasoning that “[i]f

letters and private documents can . . . be seized and

held and used in evidence against a citizen accused of

an offense, the protection of the 4th Amendment . . . is

of no value,” the Court announced that evidence ob-

6

tained in violation of the Fourth Amendment is inadmissible in criminal prosecutions. Weeks v. United

States, 232 U.S. 383, 393 (1914).

Although the exclusionary rule was an important

first step in enforcing the Fourth Amendment’s constraints on government conduct, it has a very narrow

scope. In particular, because the rule operates only by

“removing an inducement to violate Fourth Amendment rights,” United States v. Peltier, 422 U.S. 531, 557

(1975) (emphasis added)—namely, obtaining evidence

for a criminal prosecution—it has no role to play

where Fourth Amendment violations are induced by

other concerns. Among other things, the exclusionary

rule does not deter unlawful searches and seizures

committed against individuals who are not themselves the target of a criminal investigation, nor does

it address Fourth Amendment violations intended

simply to harass, coerce, or annoy.

By the 1960s, the exclusionary rule’s shortcomings

were becoming increasingly apparent. For example,

in one 19-day period in December 1964 and January

1965, law enforcement in Baltimore conducted warrantless raids of more than 300 homes, most occupied

by Black families, in a search for two brothers suspected of shooting police officers. See Lankford v. Gelson, 364 F.2d 197, 198 (4th Cir. 1966). Despite the

gross constitutional violations, the exclusionary rule

provided no avenue for relief. See Brief for Petitioner

11, Bivens v. Six Unknown Named Agents of the Fed.

Bureau of Narcotics, 403 U.S. 388 (1971) (No. 301),

1970 WL 136798 (citing the situation in Lankford as

an example of the exclusionary rule’s complete failure

to protect “the innocent victim of a fruitless search” or

7

compensate “either the guilty or innocent for invasion

of their Fourth Amendment rights”).

These shortcomings were top of mind when Bivens

came before this Court in 1971. As Chief Justice

Burger noted, “the exclusionary rule’s deterrent impact is diluted by the fact that there are large areas of

police activity that do not result in criminal prosecutions—hence the rule has virtually no applicability

and no effect in such situations.” 403 U.S. at 417–18

(Burger, C.J., dissenting). Bivens itself presented precisely such a situation. As Justice Harlan explained,

“assuming Bivens’ innocence of the crime charged, the

‘exclusionary rule’ is simply irrelevant. For people in

Bivens’ shoes, it is damages or nothing.” Id. at 410

(Harlan, J., concurring in the judgment).

As a result, the Court adopted a new enforcement

mechanism to fill the gaps left by the exclusionary

rule. In particular, the Court held that individuals

whose Fourth Amendment rights were violated by federal officers could bring suit in federal court to obtain

not only injunctive relief (which is often unavailable

where it is unlikely that the violation will recur, see

City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)),

but also damages—concluding that such relief was appropriate to vindicate an individual’s Fourth Amendment rights. Bivens, 403 U.S. at 396–97.

While Bivens marked a new direction in Fourth

Amendment jurisprudence, it arose naturally from a

long legal tradition stretching back to before the

Founding. Borrowing from English common law, early

American courts agreed that individuals could bring

suit under state tort law seeking money damages from

federal officials. See Carlos M. Vasquez & Stephen I.

8

Vladeck, State Law, the Westfall Act, and the Nature of

the Bivens Question, 161 U. PA. L. REV. 509, 531–32

(2013); Stephen I. Vladeck, The Disingenuous Demise

and Death of Bivens, CATO SUP. CT. REV. 2019–2020

263, 267 (2020) (“Not only did federal courts routinely

provide such relief, but the Supreme Court repeatedly

blessed the practice.”). Although these federal officials could claim authority under the law as a defense

to such a suit, that defense would necessarily fail if

the official was found to have acted in violation of the

Constitution. See Vasquez & Vladeck, 161 U. PA. L.

REV. at 531–32; Vladeck, CATO SUP. CT. REV. 2019–

2020 at 267–68.

Bivens supplemented this common law tradition

by allowing private parties to bring an action for damages stemming from a Fourth Amendment violation

even if the wrong committed was not actionable under

state tort law. The Court acknowledged that conditioning relief for Fourth Amendment violations on a

given state’s tort regime would be nonsensical because

“the Fourth Amendment operates as a limitation upon

the exercise of federal power regardless of whether the

State in whose jurisdiction that power is exercised

would prohibit or penalize the identical act if engaged

in by a private citizen.” Bivens, 403 U.S. at 392 (emphasis added). And it would leave the conduct of federal officials to be policed not by the parameters laid

down in the Constitution, but by those established in

the common law of torts in each of the 50 states.

Thus, while Bivens itself is a fairly recent innovation, it is a natural outgrowth of a common law tradition that predates the Founding. And it is merely one

part of this Court’s multifaceted, century-old effort to

9

enforce the Fourth Amendment’s substantive protections through private enforcement mechanisms. Yet,

in the relatively short time it has been a part of our

constitutional jurisprudence, Bivens has proven an effective mechanism for remedying government abuses.

II. WHERE IT IS AVAILABLE, BIVENS IS AN

EFFECTIVE TOOL FOR PROTECTING FOURTH

AMENDMENT RIGHTS.

Fifty years into the Bivens era, the evidence is unequivocal: The private right of action for Fourth

Amendment violations authorized by that decision

has proven one of the most effective mechanisms for

policing and preventing government misconduct. Although its availability has been sharply curtailed by

intervening caselaw, it remains a powerful tool in the

domain where it still governs. It should not be discarded lightly or unduly constrained.

Empirical analysis demonstrates that Bivens has

provided an important pathway for private citizens to

obtain redress for the violation of their right against

unreasonable searches and seizures by federal officials. A recent survey of five federal district courts

across the country found that 9.5 percent of pro se

Bivens actions that were litigated to final judgment—

and 38.9 percent of counseled Bivens actions—resulted in a victory for plaintiffs. Alexander A. Reinert,

Measuring the Success of Bivens Litigation and Its

Consequences for the Individual Liability Model, 62

STAN. L. REV. 809, 839 (2010). And notably, Bivens actions alleging Fourth Amendment violations (like the

one here) were by far the most likely to succeed, with

an overall success rate of 28.9 percent, compared to

10

15.3 percent for prison-condition claims and 11.8 percent for other claims. Id. at 836 n.138.

To be sure, courts do occasionally confront meritless Bivens actions, just as they occasionally confront

meritless actions of all types. But they have proven

remarkably adept at identifying and screening such

actions when they arise. For example, the same multidistrict survey cited above found that “almost 20% of

the Bivens claims identified . . . were dismissed sua

sponte because the district court screened them for frivolity and determined that they should be dismissed

out of hand,” thereby avoiding the “burdens of Bivens

litigation about which courts and commentators express concern—no defendant is subject to intrusive

discovery or the potential of liability, and no attorney

even has to review the complaint and prepare an answer or motion to dismiss.” Id. at 840.

As one commentator has observed, these findings

“persuasively refute[]” the prior “assumption that

Bivens claims typically lack merit” and “threaten[] to

overwhelm the federal judiciary.” James E. Pfander,

Iqbal, Bivens, and the Role of Judge-Made Law in

Constitutional Litigation, 114 PENN ST. L. REV. 1387,

1407 (2010). Many plaintiffs who assert Fourth

Amendment claims under Bivens have in fact had

their constitutional rights infringed by federal officials, and those who have not are unlikely to advance

beyond the very earliest stages of litigation. Truncating Bivens, as the Eighth Circuit has done, will leave

those Americans who have suffered a violation of their

most fundamental rights without a remedy, while

gaining next to nothing in terms of easing federal

dockets.

11

But Bivens actions are not limited to remedying

the violation of individual citizens’ rights. Rather, one

of the most important effects of such constitutional

tort litigation has been to incent government agencies

to adopt institutional reforms to ensure that constitutional constraints are not violated in the first place. It

has done so through its “informational” and “fault-fixing” functions. Myriam E. Gilles, In Defense of Making

Government Pay: The Deterrent Effect of Constitutional Tort Remedies, 35 GA. L. REV. 845, 858–65

(2001).

With respect to its informational function, Bivens

actions can bring to light individual and systemic

abuses that might otherwise go unnoticed by policymakers. “When constitutional tort victims pursue litigation, motivated by the availability of compensatory

damages, valuable information is unearthed and exposed.” Id. at 859. This litigation can encourage other

victims of government misconduct to come forward,

exposing patterns of abuse, and the crucible of discovery can fix attention on problem actors and institutional deficiencies within law enforcement agencies.

Studies confirm that constitutional tort litigation

has notified “officials of misconduct allegations that

did not surface through other reporting systems,” such

as civilian complaints and use-of-force reports. Joanna C. Schwartz, What Police Learn From Lawsuits,

33 CARDOZO L. REV. 841, 845 (2012) (noting that “lawsuits have filled critical gaps in police department internal reporting systems”). For example, the Los Angeles Sheriff ’s Department’s periodic review of suits

brought against its officers revealed “clusters of improper vehicle pursuits, illegal searches, and warrant-

12

less home entries” for which no civilian complaint existed, and which “did not appear in officers’ use-offorce reports.” Id. Once the Department’s auditor

identified the trend, he was able to recommend policy

changes to prevent additional violations going forward. Id. at 854.

In fact, a growing number of law enforcement

agencies have begun to “mine lawsuits for data about

misconduct allegations and the details of those allegations.” Id. at 846–47. The results of these efforts have

often surprised policymakers and driven targeted reforms. See, e.g., id. at 853–54 (Director of Los Angeles

Sheriff ’s Department’s risk management bureau:

“There’s times when [we] think[] it’s a single incident”

and “couldn’t see [a] problem but by having it centralized in our operation we were able to say ‘we’re seeing

a pattern here, a problem across all the units.’”). That

sort of mining helped Portland’s tort review board

identify a spike in excessive force claims involving

blows to the head. Id. at 854. After further review

“revealed that the allegations were primarily made regarding officers on the night shift at one Portland police station,” the board implemented “retraining and

closer supervision,” after which “allegations of head

strikes in that station declined.” Id.

Bivens actions can also provide critical information to the public. “Even when a civilian complaint

or use-of-force report is filed,” studies have shown that

“the litigation process can unearth details that did not

surface during the internal investigation.” Id. at 845.

For example, litigation revealed serious flaws in an internal investigation conducted after James Chasse

died of blunt-force trauma following a use-of-force incident involving two Portland police officers. Id. at

13

873. In particular, it was discovered that the police

department’s internal affairs personnel had failed to

interview all of the officers on the scene or the nurses

who observed Chasse at the jail shortly thereafter,

“and did little to investigate allegations that officers

had been laughing and joking at the scene.” Id. (internal quotation marks omitted). Most glaringly, the investigation made no attempt to improve the audio

quality of a critical recording made the night of the

incident in which the officers described and reenacted

their confrontation with Chasse. Id. During litigation, plaintiff ’s counsel improved the audio, “at which

point it became clear that the officer said he ‘tackled’

Chasse, contradicting his [subsequent] statement to

internal affairs.” Id.

With respect to its “fault-fixing” function, Bivens

actions can encourage policymakers to act proactively

to protect constitutional rights in two ways. First, “the

damages a plaintiff recovers contribute[] significantly

to the deterrence of civil rights violations in the future” by forcing government actors to internalize the

costs of misconduct. City of Riverside v. Rivera, 477

U.S. 561, 575 (1986). Federal agencies naturally wish

“to minimize the amount of their budget that is lost to

paying damages,” and Bivens actions “give[] [these

agencies] a greater incentive to monitor, supervise,

and control the acts of their employees” to ensure that

they are hewing to constitutional strictures. Catherine Fisk & Erwin Chemerinsky, Civil Rights Without

Remedies: Vicarious Liability Under Title VII, Section

1983, and Title IX, 7 WM. & MARY BILL RTS. J. 755, 796

(1999); see also John C. Jeffries, Jr., The Liability Rule

For Constitutional Torts, 99 VA. L. REV. 207, 240 (2013)

(“[D]amages for constitutional violations . . . heighten

14

the disincentives for governments to engage in conduct that might result in constitutional violations.”).

Second, Bivens actions (and the information they

uncover) “can trigger bad publicity” that puts pressure

on policymakers to prevent constitutional violations.

Margo Schlanger, Inmate Litigation, 116 HARV. L. REV.

1555, 1681 (2003). Indeed, “even for an agency that

doesn’t care about payouts (perhaps because those

payouts come from some general fund rather than the

agency’s own budget), media coverage of abuses or administrative failures can trigger embarrassing political inquiry and even firings, resignations, or election

losses.” Id.; see also Joanna C. Schwartz, How Governments Pay: Lawsuits, Budgets, and Police Reform, 63

UCLA L. REV. 1144, 1151 (2016) (noting that Bivens

actions can put critical “nonfinancial pressures” on

policymakers “by generating publicity about allegations of misconduct and by revealing previously unknown information about the details of that misconduct”).

The fault-fixing function played by constitutional

torts like Bivens has been on heightened display in recent years. Responding to nearly half-a-billion dollars

in payouts for police misconduct, the City of Chicago

has been “working to break that expensive pattern

and concentrating on implementing police reforms” by

“look[ing] at the deep seated issues within the department to start rooting out those problems.” Cheryl Corley, Police Settlements: How the Cost of Misconduct Impacts Cities and Taxpayers, NPR (Sept. 19, 2020),

https://tinyurl.com/2enbq5dl. And faced with increasing costs under municipal liability policies, “city insurers have demonstrated surprising success in ‘policing

the police,’ eliminating risky protocols, ousting police

15

chiefs and even closing problematic departments altogether.” Kit Ramgopal & Brenda Breslauer, The Hidden Hand That Uses Money to Reform Troubled Police

Departments, NBC NEWS (July 19, 2020), https://tinyurl.com/39scutxe; see also Rachel B. Doyle, How Insurance Companies Can Force Bad Cops Off the Job,

THE ATLANTIC (June 10, 2017), https://tinyurl.com/10b93ra7 (describing how “liability insurers can put a private-sector spin on reform, by demanding structural changes in the police departments

that they cover”); Martin Kaste, When It Comes to Police Reform, Insurance Companies May Play a Role,

NPR (Apr. 1, 2016), https://tinyurl.com/szz6qgri (reviewing how insurers have encouraged reforms in police departments, including by distributing pamphlets

on how to perform a strip search, meeting with police

chiefs following use-of-force incidents, and paying for

special training for police departments).

The individual and systemic benefits engendered

by Bivens have come at a surprisingly low cost. Bivens

cases comprise an exceedingly small fraction of federal courts’ caseload. “As a percentage of total civil

filings involving federal questions, Bivens suits filed

between 2001 and 2003 ranged anywhere from 0.7%

to 2.5% of the work of ” surveyed district courts, “and

1.2% of the total federal question filings.” Reinert, 62

STAN. L. REV. at 835. Expanding the pool to include all

civil actions filed in federal court, Bivens actions comprise less than 0.17 percent of cases. Id. at 837 (finding 243 Bivens filings out of 143,092 total civil filings

in the districts surveyed). And as noted above, many

of these cases are quickly disposed of through preliminary screening.

16

Unlike “one size fits all” mechanisms for policing

government misconduct, Bivens leaves policymakers

free to adopt the reforms that they deem best suited

to the context in which they operate. See Richard H.

Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 HARV. L.

REV. 1731, 1788 (1991) (“[A] damages award does not

require discontinuation of such practices, [but] it exerts significant pressure on government and its officials to respect constitutional bounds.”). This not only

facilitates institutional buy-in within government

agencies, but also encourages experimentation and

adaptation.

Put simply, Bivens continues to serve the vital

Fourth Amendment interests identified by this Court

when it adopted its private cause of action nearly half

a century ago. Now is not the time to abandon it.

III. BIVENS IS AN ESPECIALLY IMPORTANT TOOL AT

THIS MOMENT.

It is no secret that the relationship between law

enforcement and the communities they police has become increasingly strained in recent years. High-profile incidents involving the excessive use of force, especially against members of marginalized communities, has caused public trust in law enforcement to

plummet. This distrust harms not only law enforcement personnel, who find it increasingly difficult to

safely and effectively do their jobs, but also the public,

who depend on transparent and accountable law enforcement to keep their communities safe. In this environment, it is more important than ever that citizens have a neutral forum in which their complaints

17

involving official misconduct can be heard and redressed.

Decades of “[s]tudies have shown that police officers use force against racial minorities at disproportionately high rates, and there is reason to believe

much of this force is unjustified.” Elias R. Feldman,

Strict Tort Liability for Police Misconduct, 53 COLUM.

J. L. & SOC. PROBS. 89, 90 & n.5, 98–106 (2019). Indeed, “[m]assive racial disparities exist in rates of police traffic stops, stop and frisks, citations, and narcotic search warrants.” Brandon Hasbrouck, Abolishing Racist Policing With the Thirteenth Amendment,

67 UCLA L. REV. 1108, 1115–16 (2020).

For example, “[o]fficers are almost three times

more likely to search Black and Latinx drivers than

White drivers,” even while “data show[s] that officers

are more likely to find weapons and contraband on

White people.” New Era of Public Safety: An Advocacy

Toolkit for Fair, Safe, and Effective Community Policing 14, 41, The Leadership Conference on Civil and

Human Rights (2019), https://civilrights.org/wp-content/uploads/Toolkit.pdf (emphasis added). Likewise,

“Black people are three times more likely to be killed

by officers than White people.” Id. at 14; see also id.

at 44 (noting that police are also “more likely to use

force, including lethal force, against Latinx, Indigenous, and Asian people than White people”). In fact,

“between 2010 and 2012, Black men aged 15–19 were

21 more times likely to be killed by officers than their

White male counterparts.” Id. at 14 (emphasis added).

Moreover, Black people “are killed by police at a rate

nearly 10 percentage points higher than the rate at

which they commit violent crimes”—and they are

killed “even more disproportionately among victims

18

who are unarmed, as well as among victims killed during generally innocuous types of police interactions,

such as traffic or pedestrian stops.” Feldman, 53

COLUM. J. L. & SOC. PROBS. at 99–100 & n.40.

Unsurprisingly, these abuses have led to widespread distrust of law enforcement among the Black

community. One poll conducted just last year found

that “only 19 percent of Black adults” reported that

“they were confident in the police.” Aimee Ortiz, Confidence in Police Is at Record Low, Gallup Survey

Finds, NY TIMES (Aug. 12, 2020), https://tinyurl.com/dh00vlnt. And while this distrust is most

pronounced among minorities, the downward trend is

consistent across demographics. In fact, by last summer, “confidence in the police had fallen . . . to 48 percent,” marking “the ‘first time in the 27-year trend

that this reading [wa]s below the majority.’” Id. While

trust in law enforcement rebounded somewhat in

2021—to 51 percent—“the latest three-point uptick is

not statistically significant, the measure remains shy

of its 2019 level[,]” and trust is well below levels seen

in the 1990s and 2000s. Megan Brenan, Americans’

Confidence in Major U.S. Institutions Dips, GALLUP

(July 14, 2021), https://tinyurl.com/27pxd8j9.

The low trust in law enforcement has profound

consequences for government officials and the public

alike. It is widely acknowledged that “community

trust in the police is an important contributor to effective crime control.” Jocelyn Fontaine, et al., Mistrust

and Ambivalence Between Residents and the Police:

Evidence From Four Chicago Neighborhoods 1, URBAN

INSTITUTE (Aug. 2017), https://tinyurl.com/1xpfnii9;

see also New Era of Public Safety: A Guide to Fair,

19

Safe, and Effective Community Policing 10, The Leadership Conference on Civil and Human Rights,

https://tinyurl.com/5dbqrewp (“[W]hen communities

and police departments trust each other and interact

positively, public safety improves because people are

more likely to cooperate with police to address problems.”). In particular, as the Department of Justice

has recognized, “[p]olice officials rely on the cooperation of community members to provide information

about crime in their neighborhoods, and to work with

the police to devise solutions to crime and disorder

problems.” Importance of Police-Community Relationships and Resources for Further Reading 1, Department of Justice, https://tinyurl.com/1rg21btx.

As community trust erodes, however, citizens become increasingly reluctant to cooperate with law enforcement. As one recent study found, “[c]rime victims’ perceptions that they will be treated unfairly or

not taken seriously by the police reduce the probability of them reporting offenses to law enforcement by

11 percent.” J. Gabriel Ware, Crime Victims Don’t Report if They Don’t Trust Cops: Study, THE CRIME REPORT (Dec. 13, 2018), https://tinyurl.com/yq3clz8m.

And a case study of crime reporting in the wake of a

particularly brutal beating of a Black man by police in

Milwaukee “found that after news of [the] beating

broke . . . there was a nearly 20% drop in 911 calls reporting crimes to the Milwaukee police, driven by a

much steeper decline in calls reporting violent crimes

from the city’s black community.” In Pursuit of Peace:

Building Police-Community Trust to Break the Cycle

of Violence 37, Giffords Law Center (Jan. 2020),

https://tinyurl.com/7yhf42y6. “In total, researchers

estimated that Milwaukee’s residents placed at least

20

22,000 fewer 911 calls reporting crimes to the police

in the year after they learned about the beating,” with

the “majority of these 22,000 ‘missing’ 911 calls . . .

from neighborhoods where at least 65% of the population was black.” Id.

Bivens is critical to preventing further erosion of

the public’s trust in American law enforcement institutions. The informational function such actions

serve can help to cure misperceptions about police

misconduct by providing a neutral, public forum in

which allegations of abuse can be heard and their merits decided. See Public Trust and Law Enforcement—

A Discussion for Policymakers 8, Congressional Research

Service

(July

13,

2020),

https://tinyurl.com/3rm3mfpy (“It may be that the

lack of reliable data on how often police use force and

who is the subject of the use of force fuels the public’s

mistrust of the police.”). And even when those actions

uncover gross abuses, Bivens will provide redress to

victims, signal that wrongdoers will be held to account, and encourage reforms. See Melissa Mortazavi,

Tort as Democracy: Lessons from the Food Wars, 57

ARIZ. L. REV. 929, 948 (2015) (“Tort is an important

procedural mechanism for deliberative democratic accountability and governmental legitimacy as well as a

catalyst for institutional reform.”). The role that

Bivens can play at this critical juncture cannot be

overstated. See New Era of Public Safety: A Guide to

Fair, Safe, and Effective Community Policing at 190

(noting that accountability “sends a message to communities that unjust and unconstitutional conduct is

not tolerated and will receive swift discipline[,] builds

public trust[,] and, in turn, strengthens the legitimacy

21

of police departments and the criminal justice system

at large”).

Neutering Bivens, on the other hand, will only

make matters worse. Denied their day in court, those

who feel aggrieved by government misconduct will increasingly take to the streets to make their voices

heard. And the law enforcement members who act

with integrity to protect the communities they serve

will be unable to distinguish themselves from bad actors and thus find themselves under a growing cloud

of suspicion.

There is no discernible reason to invite such a response. For nearly half a century, Bivens has proven

not only workable, but effective in policing constitutional bounds on government conduct. Abandoning it

now would disserve the public, law enforcement, and

the settled law of the land.

IV. BIVENS DOES NOT POSE AN UNDUE THREAT TO

FEDERAL LAW ENFORCEMENT.

This Court’s decisions restricting Bivens have expressed an understandable concern that the risk of

personal liability might hamper federal officers in the

discharge of their duties. See, e.g., Ziglar v. Abbasi,

137 S. Ct. 1843, 1861 (2017) (“The risk of personal

damages liability is more likely to cause an official to

second-guess difficult but necessary decisions[.]”);

Hernandez v. Mesa, 140 S. Ct. 735, 747 (2020) (“[T]he

risk of undermining border security provides reason

to hesitate before extending Bivens into this field.”).

But this concern is overstated.

There is no evidence to support the assumption

that the possibility of Bivens liability plays a role in

federal law enforcement officers’ day-to-day work.

22

This is unsurprising, as these officers tend to enjoy

broad indemnification from their federal employer. As

one recent study found, “of the 171 successful cases in

our dataset asserting Bivens claims, we found only

eight in which the individual officer or an insurer was

required to make a compensating payment to the

claimant.” James E. Pfander, et al., The Myth of Personal Liability: Who Pays When Bivens Claims Succeed, 72 Stanford L. Rev. 561, 566 (2020). Instead, “the

federal government effectively held its officers harmless in over 95% of the successful cases brought

against them, and paid well over 99% of the compensation received by plaintiffs in these cases.” Id.

And of course, there is no need to speculate as to

the effect a meaningful Bivens remedy would have on

federal law enforcement. A remedy far more robust

than Bivens already exists against state officers who

infringe citizens’ constitutional rights. See 42 U.S.C.

§ 1983. Far from preventing these officers from faithfully discharging their duties, this remedy has, if anything, proven too indulgent of state law enforcement.

See Theodore Eisenberg, Four Decades of Federal Civil

Rights Litigation, 12 J. Empirical Legal Stud. 4, 7

(2016) (“[I]t is clear that Section 1983 plaintiffs also

fare poorly compared to non-civil-rights plaintiffs.

Pretrial judgment rates for plaintiffs are lower than

in other classes of cases, pretrial dismissal rights are

higher than for other class[es] of cases and have plaintiff trial win rates of 30 percent or less, which is lower

than the rates for most classes of civil litigation.”).

Denying a cause of action against a federal officer

under Bivens where a cause of action would indisputably exist against a state officer “stand[s] the constitutional design on its head” by erecting “a system in

23

which the Bill of Rights monitors more closely the conduct of state officials than it does that of federal officials.” Butz v. Economu, 438 U.S. 478, 504 (1978). After all, “as every schoolboy knows, the Framers ‘designed’ the Bill of Rights not against ‘state power,’ but

against the power of the Federal Government.” Williams v. Florida, 399 U.S. 78, 145 (1970) (Stewart, J.,

concurring in part and dissenting in part). “That Congress decided, after the passage of the Fourteenth

Amendment, to enact legislation specifically requiring

state officials to respond in federal court for their failures to observe the constitutional limitations on their

powers is hardly a reason for excusing their federal

counterparts for the identical constitutional transgressions.” Butz, 438 U.S. at 504. This is all the more

true today, when federal and state law enforcement

partnerships are routine, blurring the distinction between federal and state officials. See, e.g., U.S. Attorney’s Office for the Western District of Tennessee, Federal Agencies and Law Enforcement Partners (July 1,

2021), https://tinyurl.com/kwccdv28 (listing 14 federal

agencies and eight state and local law enforcement organizations with standing partnerships in the Western District of Tennessee).

No interest is served by taking such an incongruous approach to the enforcement of constitutional

rights. This Court should take this opportunity to restore parity in the protection of constitutional rights

from rogue government action, whether by federal or

state officers.

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CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted.

THEANE EVANGELIS

Counsel of Record

SAMUEL ECKMAN

JAMES TSOUVALAS

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071-3197

(213) 229-7804

tevangelis@gibsondunn.com

Counsel for Amici Curiae

September 9, 2021