Broad Coalition Supports Bill to Hold Federal Officials Responsible for Rights Violations

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Dear Representatives Johnson and Raskin and Senators Whitehouse and Padilla:

As nonpartisan organizations working to protect civil and human rights and ensure government accountability, we write in strong support of the Bivens Act, which would ensure that federal officials cannot violate constitutional rights with impunity.

During Reconstruction, Congress passed a civil rights law giving individuals the right to sue state or local officials who violate their constitutional rights. The provision, codified at 42 U.S.C. § 1983 (“Section 1983”), was designed to be one of the most important civil rights laws in the United States — but it does not give individuals the right to sue federal officials who violate the Constitution, nor does any other statute.¹

In the 1970s, the Supreme Court recognized an implied right of action for an individual to sue under the Constitution itself for damages resulting from rights violations perpetrated by federal officials, in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Bivens is grounded in the principle that “the very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury,” as the Supreme Court stated in Marbury v. Madison, 5 U.S. 137 (1803). In recent years, though, the Supreme Court and lower courts have all but eliminated the ability to bring Bivens lawsuits even for the gravest violations of constitutional rights.

As Fifth Circuit Judge Don Willett wrote in a recent decision:

redress for a federal officer’s unconstitutional acts is either extremely limited or wholly nonexistent, allowing federal officials to operate in something resembling a Constitution-free zone. ... If you wear a federal badge, you can inflict excessive force on someone with little fear of liability.²

As a result of the extreme narrowing of Bivens and the lack of a statutory cause of action to sue federal officials for damages resulting from constitutional violations, our courts have recently closed their doors to countless individuals whose rights federal officials have violated, including:

• parents whose children were killed by Border Patrol agents;³
• Muslim immigrants who were rounded up, subjected to punitive strip searches, and imprisoned in solitary confinement for months on the basis of their religion;⁴
• a 70-year-old Vietnam veteran whom security officers beat and choked on his way to a doctor’s appointment in a Veterans Administration hospital;⁵
• children deliberately separated from their parents as part of the “zero tolerance” immigration policy;⁶
• a Canadian citizen whom the CIA “rendered” to Syria for months of torture;⁷
• a woman who was wrongfully convicted based on false testimony from a federal law enforcement officer;⁸
• peaceful demonstrators who were teargassed and assaulted in Lafayette Park in June 2020 for protesting against police violence and racism;⁹ and
• military servicemen and servicewomen who were victims of sexual assault and retaliation.¹⁰

The Supreme Court has recently agreed to hear a case that could narrow Bivens still further, if not overrule it altogether.¹¹

By adding five simple words to Section 1983 (“of the United States or”), the Bivens Act would prevent injustices like those above, and ensure that federal officials are held to the same standards as state and local officials when constitutional rights are implicated.

Thank you for your leadership in introducing the Bivens Act. We urge bipartisan, bicameral support for this critical legislation.