The problem: no recourse against federal abuse

The Supreme Court has worked to ensure people beaten, shot or harmed by federal officers have little recourse.

Nielsen v. Watanabe arrives November 9

On November 9, the Court will hear Nielsen v. Watanabe, a case that could eliminate all remaining hope that someone targeted by a federal officer might hold that officer accountable in court.

Bivens allowed suits for constitutional violations

Bivens v.Six Unknown Named Agents (1971) established that federal law enforcement officers may sometimes be sued if they violate someone's constitutional rights.

“a federal officer who acts unlawfully "in the name of the United States possesses a far greater capacity for harm than an individual trespasser"”

The Court turned against Bivens

As the Court's membership moved rightward, Bivens fell out of favor. The Republican majority now describes Bivens suits as a disfavored judicial activity and has instructed judges to reject Bivens claims if there is any…

“any rational reason (even one)”

The Court doubts it would decide Bivens today

The Court's recent decisions have said it is doubtful they would have reached the same result if Bivens were decided today. Now the same justices are being asked to overrule Bivens altogether.

“doubtful that we would have reached the same result”

Watanabe's case: denied medical care in prison

Kekai Watanabe, a formerly incarcerated man, was assaulted by fellow inmates and suffered severe back pain. When he requested hospital treatment, it was denied. He received only intermittent over-the-counter medication for months.

X-ray revealed serious injury after seven months

After seven months, Watanabe was finally given an X-ray, which revealed a fractured tailbone and bone chips that had migrated into surrounding soft tissue.

“remains in tremendous pain today”

Lower court: Watanabe's claim mirrors Carlson

A federal appeals court concluded that Watanabe's legal claim is identical to Carlson v.Green (1980) in all meaningful respects.

“is identical to Carlson in all meaningful respects”

But the Supreme Court looks for reasons to deny

The Court's recent cases tell judges to rule against Bivens plaintiffs if there is any rational reason to do so.

Thirteen Bivens suits rejected since Carlson

The lawyers asking the Court to overrule Bivens claim that since Carlson, the Court has rejected thirteen different suits raising Bivens arguments.

Republicans control six Supreme Court seats

Republicans control six seats on the Supreme Court, and those six justices are fully dug into their opposition to Bivens.

Overruling Bivens would finish the job

The biggest open question is whether the Court will overrule Bivens entirely. Federal officials already enjoy such broad immunity from suit that an opinion overruling Bivens will probably do little more than rescue judges from…