Accountability for federal officer wrongdoing comes to a head at SCOTUS

WASHINGTON (CN) — Next week at the Supreme Court, a Honolulu paramedic will ask the justices for help snuffing out a $3 million lawsuit for denying medical treatment to an inmate at a federal detention center.Francis Nielsen also suggested the high court should use his case to shut down one of the only pathways available for remedying rights violations by government officials. The request might be an appealing opportunity for the court to finally rid itself of a 55-year-old precedent on the brink of extinction and put an end to what some justices have viewed as judicial policymaking.But legal advocates say that’s not what the country needs nor what the founders would have wanted. They warn the consequences could be severe if the Supreme Court decides Americans have no path to sue wayward federal officers in this moment in history.Legal scholars from the CATO Institute, a libertarian think tank, urged the Supreme Court instead to give the people and the lower courts a full-throated affirmation of federal accountability.“They need to hear that an agent of the government who is entrusted with public power is not immune from consequences at law for abusing it,” the group wrote. “And they need to see firsthand that the principles and values adopted at ratification are still operative todayLong time comingAfter the Civil War, Congress passed a law known as Section 1983 to protect Black Americans from white supremacist violence in the South. The law empowered individuals to sue state and local government officials who violate their federal constitutional rights.There was no similar remedy against federal officials’ wrongdoing until 1971, when the Supreme Court ruled in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. The landmark case allowed individuals to bring civil lawsuits against federal government officials for constitutional violations.Since then, the Supreme Court has only extended Bivens twice. In 1979, the court allowed a staffer to sue a member of Congress for sex discrimination in Davis v. Passman. And in 1980, the justices permitted the family of an inmate to sue prison officials that failed to provide him medical assistance during an asthma attack leading to the prisoner’s death in Carlson v. Green.Bivens, however, has fallen out of favor with the Supreme Court. In 2022, the justices gutted the precedent in Egbert v. Boule, ruling that Bivens claims couldn’t be brought against Border Patrol officers because of national security concerns.Identical or fraternal twins?The Supreme Court has refused to extend Bivens over a dozen times in recent years, suggesting Congress needs to take up that mantle instead. However, the justices have also resisted calls to overturn the precedent entirely, allowing cases that fit under current precedents to move forward.Kekai Watanabe says his case falls squarely under Carlson. Watanabe was assaulted while incarcerated in 2021 resulting in a fractured tailbone. Despite his repeated complaints and requests for medical assistance, was only given over-the-counter medication.Seven months after the assault, the extent of Watanabe’s injuries were discovered in an X-ray. Bone chips from the fractured tailbone had migrated into the surrounding soft tissue, causing him intense pain that continues today.Watanabe sued Nielsen, the prison paramedic, in 2022 for denying him medical care, seeking monetary damages for Eighth Amendment violations. A lower court dismissed the suit but the Ninth Circuit reversed, finding Watanabe’s case could move forward because it did not meaningfully differ from Carlson.At the Supreme Court, Watanabe argued that his claim shouldn’t be considered new simply because he did not die.“Requiring death for a Carlson claim overlooks that the Eighth Amendment is meant to reduce suffering, and it would exempt officers from damages liability even if they deliberately engage in heinous conduct that causes extreme pain and injury just short of death,” Watanabe’s attorneys wrote.Still alive but barely breathingNielsen countered that Watanabe’s case is meaningly and profoundly different from Carlson, claiming that any difference from the ruling should be considered a new context. Nielsen argued that Watanabe’s injury differed in nature, severity and immediacy.The Supreme Court granted Nielsen’s appeal to decide whether the Ninth Circuit erred in recognizing a Bivens cause of action. But Nielsen urged the justices to take the opportunity to end Bivens for good, stating that it counted to “haunt” the constitutional jurisprudence.“It gives false hope to litigants whose suits are (almost) invariably doomed,” Nielsen wrote. “It burdens federal employees caught in its crosshairs. It forces this court to repeatedly remind federal courts of their limited constitutional station. And it gives Congress an excuse not to claim its rightful role in this area. Rather than continually engage in Bivens error correction, the court may wish to recognize that the error is Bivens itself.”The federal government submitted an amicus brief supporting Nielsen, stating that the enactment of new prison reform statutes and the creation of new remedies for prisoners make Carlson obsolete.Stephen Vladeck, a professor at Georgetown University, said that treating every factual variation as a new Carlson context would confine the precedent to its precise facts. However, Vladeck said the question is whether the facts are meaningful, not identical.“If Carlsonno longer governs the Eighth Amendment context that it recognized, it governs nothing,” Vladeck wrote. “That result would overrule Carlson in substance while avoiding the discipline of doing so expressly.”Ending the madnessThe Cato Institute says that to end or not to end Bivens is beside the point because it was never necessary in the first place. Instead, the group urged the Supreme Court to recognize that the Constitution already gives people protections from such abuses.“‘The people themselves know that the Constitution is already supposed to protect them from the worst government abuses,” the Cato Institute wrote. “It would, candidly, be shocking for the court to say that a theory of constitutional organization demands further authorizing legislation.”Money damages have been the default remedy for injured people seeking justice in the courts for centuries, the group said, citing English and founding-era case law examples of such cases. And the Cato Institute said the founding generation was uniquely concerned about the dangers presented by an unaccountable governing class.“Amicus respectfully submits that just as the founders would have been shocked to learn that federal officials are purportedly immune from accountability at law, Americans today should find such impunity inconsistent with the foundational promise and premise of our nation,” the group wrote. “Hollowing out the only meaningful remedy ordinary Americans have when a federal officer violates the Constitution would only exacerbate their fears, further weakening the social compact.”This case comes to the court in the wake of outrage over immigration crackdowns resulting in violent and sometimes deadly clashes between protesters and ICE agents. In this moment in particular, the Cato Institute said the Supreme Court needs to affirm that the Constitution protects its citizens and federal agents will face consequences for their lawlessness.The Supreme Court will hear arguments on Monday.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads