In 1971, the Supreme Court ruled that an “implied cause of action” existed in the case of federal agents violating an individual’s constitutional rights, despite there not being a federal statute that explicitly guaranteed the ability of individuals to sue federal government officials in the case of a rights violation in the books. Justice Brennan delivered the majority opinion of the Court, saying “That damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials should hardly seem a surprising proposition. Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty.” This case set the precedent for an inferred right of action against federal rights violations. But in recent decades we’ve seen new supreme court decisions chipping away at that precedent.
One way to combat this slow erosion for recourse against rights violations would be via a law, such as the law that guarantees a right of action against state officials who engage in rights abuses: 42 U.S.C §1983. This law explicitly states that state officials that violate individuals’ rights can be sued by those individuals. But because of the language of this law, it only applies to state officials. Understanding this, a group of lawmakers, including Representative Hank Johnson (D-GA), Representative Jamie Raskin (D-MD), Senator Sheldon Whitehouse (D-RI), and Senator Alex Padilla (D-CA), introduced the Bivens Act of 2021. This bill makes one simple change to 42 U.S.C §1983, literally changing a single sentence, and expands the law to federal government officials opening the door to recourse in the case of federal officials committing a rights abuse.
The supreme court chipping away at the precedent set in Bivens has closed the doors for any recourse for a multitude of victims of federal agents, including a 70-year-old Vietnam vet who was beaten by federal agents, a family who lost their son to a cross-border shooting carried out by CBP, and a woman who was wrongfully convicted due to the false testimony of a federal agent. Explicitly naming federal officials in 42 U.S.C §1983 could prevent these sorts of tragedies from ever happening again, or at the very least allow their families some sort of justice.