Court Tosses Lawsuit From Woman Wrongly Jailed For 2 Weeks Because ‘Bivens’ Precedent Only Works For Webster Bivens
If you think qualified immunity is awarded far too frequently during far too many cases involving obvious rights violations, brace yourself for the harrowing insanity that is the wreckage that has been made of Supreme Court's Bivens decision.
That case involved rights violations by federal officers against Webster Bivens. The Supreme Court found in favor of Bivens and created a cause of action that allowed people to sue federal officers in court. It shouldn't have bothered. Since then, almost zero federal courts have allowed plaintiffs to bring lawsuits under this precedent. Any time one of the lower courts does, the Supreme Court reminds them that a Bivens lawsuit's facts have to be almost exactly the same as those involving the original plaintiff in the 1971 case. Anything else is considered to be creating a new" cause of action and strictly forbidden.
And so it goes here in the case of Judith Henry, who was arrested by US Marshals and held for two weeks (in two different jails) before someone finally decided to run her prints. Once that happened, law enforcement finally realized they had the wrong person in custody.
The Third Circuit - like pretty much every other federal court - says Henry can't sue the Marshals who arrested her. The facts of the case, though, are absolutely flabbergasting. From the decision [PDF]:
In 1993, a different woman named Judith Maureen Henry (the Absconder") skipped parole in Pennsylvania.
Fast forward to 2019, when the director of the Pennsylvania Interstate Parole Services issued a warrant for the Absconder's arrest for the parole violation. That warrant, however, targeted Henry's home address and attached her driver's license photo. Parole Services forwarded the warrant to officials in New Jersey.
It's not the most egregious case of mistaken identity. Both the parole violator and the innocent woman had the same name. But it does seem extremely absurd that Pennsylvania parole services is issuing warrants for someone it apparently hadn't checked up on in more than two decades. Given that massive time gap, more due diligence was needed to ensure the wrong person didn't get picked up, which obviously didn't happen here.
Instead, the information passed on to the Marshals Service told the officers to find this woman at this address. Which they did. She protested during her arrest, but there was no reason (at that time) for the involved officers to doubt they had the correct person.
But they could have followed up rather quickly and painlessly on her protests. She repeatedly asked them to take her prints and compare them to those of the absconded Judith Henry. These requests were ignored until she was transferred back to Pennsylvania. The wrong Judith Henry was arrested on August 22. Her prints weren't taken until September 3. Then, despite knowing her prints weren't a match, Pennsylvania law enforcement kept her in jail until September 5.
The appeals court says the Marshals were justified in relying on the arrest warrant, especially since the arrested person had the same name as the parole violator they were looking for. But even if these violations - including the extended detention - were firmly linked to the Marshals (who only effected the arrest), this wouldn't have worked out for the innocent Judith Henry. And that finding still holds even if the Third Circuit agrees (which it does) that the state officers working with the Marshals can be treated as federal officers for the purposes of this lawsuit.
The precedent is so narrow it only applies to one person: and that person is the one who helped create the precedent that apparently is now impossible to apply to anyone else for any reason.
The only Supreme Court case authorizing a Bivens remedy for police misconduct is Bivens itself. Ziglar, 582 U.S at 131.3 The complaint in Bivens alleged that the plaintiff was invalidly subject to a warrantless arrest in his home. 403 U.S. at 389. We do not read Henry's complaint as sufficiently alleging that state of affairs.
As the decision notes, the Supreme Court has only authorized a Bivens action three times since its 1971 ruling. Its direction to lower courts is to reject any extension" or new context" if judges see any reason to pause" before attempting to expand this precedent. How that works out for plaintiffs is that the government always wins, no matter what violations federal officers have committed. There's just not enough space left in the jurisprudence for plaintiffs to get a cause of action in edgewise.
A context is new if it is different in a meaningful way from previous Bivens cases decided by" the Supreme Court. Ziglar v. Abbasi, 582 U.S. 120, 139 (2017). Whether a context is new is an easily satisfied" test because a modest extension [of the Bivens action] is still an extension." Id. at 147-49. Even significant parallels to one of the [Supreme] Court's previous Bivens cases" may not be enough.
That shuts down pretty much the entire lawsuit. As for Henry's far-from-unreasonable requests she be fingerprinted to clear up the confusion, the court has this to say about this request that went ignored for most of two weeks:
We grant that, asking those questions in this case, a reasonable observer could conclude the answers are not hard to find and would impose minimal burdens on the Marshals. Henry's request was modest: merely that her fingerprints be compared to the Absconder's. But it is for Congress, not the judiciary to balance[] the costs and benefits" of a cause of action against the Marshals bottomed on their failure to investigate Henry's claims of innocence. The legislature must decide whether the potential encroachment" on the executive branch's investigatory function is worth it." Accordingly, concerns for separation of powers counsel hesitation before we endorse a Bivens suit in a new context.
And there it is: it's up to Congress to fix this. Well, we won't be holding our breath. If there's anything Congress isn't in any hurry to do, it's making it easier to sue federal employees for rights violations. This decision is just another nail in the Bivens coffin. It will only take a few more before the precedent ceases to exist entirely.