CALL FOR A CONSULTATION 774-312-7250 774-312-7250

Harmed While Detained: What remedies are available to those who are harmed by policing agents while detained under federal law?

The judiciary has developed precedent that deals with the harmful outcomes of security programs disproportionately affecting immigrants in our society. In particular, the common law has dealt with deprivations imposed by policing agents.

In the seminal case Bivens v. Six Unknown Fed. Narcotics Agents, the petitioner alleged that he was arrested without probable cause. The officers entered his home, handcuffed him in front of his family, and then took him to a federal courthouse in Brooklyn, where he was subjected to a strip search. The petitioner brought suit in 1967 in Federal District Court, alleging that the agents used unreasonable force in making the arrest. The District Court dismissed the complaint, holding that the petitioner failed to state a cause of action. The Court of Appeals affirmed.[1]  But the Supreme Court reversed, holding that Bivens indeed stated a cause of action under the Fourth Amendment and may therefore recover money damages for any injuries he suffered as a result of the constitutional violation. The court expressed some concern about imposing liability against detention center employees on a subjective and unpredictable basis, but it determined that if an employee was directly involved in an abuse that violates a constitutional provision, then a claim may be adequately stated. The Court reasoned: “[we are not] asked in this case to impose liability upon a congressional employee for actions contrary to no constitutional prohibition, but merely said to be in excess of the authority delegated to him by the Congress.”[2]  The case of Bivens provides standing to unlawfully harmed detainees to at least state a claim for relief if they are harmed in the United States. And the case has been further developed in recent common law.

Particularly helpful for members of this class are several cases which have held that Bivens actions under the Fifth Amendment adequately state a claim upon which relief may be granted. These include Fabian v. Dunn, No. SA-08-cv-269-XR (W.D. Tex. Aug. 6, 2009), in which plaintiffs were apprehended by federal immigration authorities. The unaccompanied minors alleged that ICE and other federal employees violated Fifth Amendment rights due to unsafe and inhumane detention conditions. The court declined to dismiss a claim that a defendant federal employee interfered with visa certifications preventing one plaintiff from attending his asylum hearing and denying said plaintiff of a bond hearing. In MacDonald v. U.S. (2011 WL 6783327), the court again refused to dismiss the plaintiff’s claim that he was wrongfully detained for two months and wrongfully deported, and the plaintiff was thereafter able to sue.[3]

Indeed, many Bivens claims have also survived motions to dismiss on a theory of mistreatment of person or property. For example, the 7th Circuit has held that a defendant’s deliberate indifference to an inmate’s safety or health may be a claim upon which relief may be granted.[4]  Physical abuse, such as a defendant being struck on the thigh, shoulder, and ribs, may also be a legitimate basis for monetary relief.[5] 

To be sure, Bivens provides some remedy for those harmed in detention, inclusive of both those who are detained on a discriminatory basis and those who are not. But Justice Harlan’s concurring opinion in Bivens points to a problem that is so prevalent even four decades after the seminal decision: “It will be a rare case indeed in which an individual in Bivens’ position will be able to obviate the harm by securing injunctive relief from any court.”[6]  Moreover, Bivens only operates as a solution for the mistreatment of this class if we accept the legal fiction that money can compensate for physical harm and wrongful deprivation of bodily freedom. While monetary remedies may give incentive to federal agents to practice more carefully, the remedies provided by Bivens and its progeny cannot provide a full solution to prevent future harm and correct past harm to this class. The remedies in Bivens are also inadequate because they do not reach those individuals who promulgate DHS regulations, such as the Attorney General or Secretary of Homeland Security. 

Bivens actions, like any cause of action, are limited by pleading standards at the outset of the claim. Some scholars have theorized that in emergency situations, executive power needs to be increased and protected. Such theorists explain that in nonemergency times, the risk of misusing broad executive power outweighs any slight increase in security or public benefit. But in emergency times, such scholars argue, the opposite is true—the security benefit conferred on the American public by broad executive power outweighs any loss of personal liberty.[7]  This scholarly theory seems to be at play when courts raise the pleading standard for actions like that of Bivens. But such a theory is problematic when courts make the wrongful assumption that detention of members of this class benefits national security despite a lack of credible evidence to that effect.

In Ashcroft v. Iqbal, the Supreme Court considered allegations by a Pakistani Muslim, who was arrested on criminal charges in the wake of 9/11.[8]  Iqbal claimed that he was subjected to discriminatory confinement and abuse because of his race, religion, or national origin.[9]  The case was considered by the Supreme Court in the context of an “uncontested assumption that Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) allows personal liability based on a federal officer’s violation of an individual’s rights under the First and Fifth Amendments….”[10]  In 2009, the United States Supreme Court held that “qualified immunity” of high-level federal officials is cause for dismissal of alleged constitutional violations.  In fact, the court rejected Iqbal’s argument that high-level officials should be subject to “supervisory liability” even if the court were to find that the official (former Attorney General) had knowledge of a discriminatory intent of his subordinate.[11]   Justice Kennedy’s opinion stated as follows:

The September 11 attacks were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good standing of al Qaeda, an Islamic fundamentalist group. Al Qaeda was headed by another Arab Muslim — Osama bin Laden — and composed in large part of his Arab Muslim disciples. It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims.[12]


Justice Kennedy’s apparent acceptance of disparate impacts on this class is highly problematic given the frequency and severity of the harmful outcomes described earlier. In this excerpt of his judicial opinion, Kennedy seems to accept the wrongful detention of members of this class as incidental to national security. But he does not consider whether these practices, of detaining and physically harming this class, are narrowly or even closely tailored to the concededly legitimate governmental purpose of national security. This strict scrutiny standard would be applied when race-based disparities appear to be present in the law. But Justice Kennedy apparently fails to recognize this as a situation requiring such scrutiny. Such a failure to apply strict scrutiny appears to be a miscarriage of justice when the detention of class members is frequently related to religion, national origin, and race. 

Alex Mooradian

If you have any further questions about detention, deportation, immigration status, bond hearings, or your rights after having contact with law enforcement, contact one of GSK&G’s immigration or criminal defense lawyers.

[1] Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 390-91 (1971).

[2] Bivens, 403 U.S. 388, 396-397.

[3] Buchwalter, James L., JD. “Remediation of Constitutional Harm through Bivens Action in Immigration Context.” American Law Reports ALR Federal.2d (2013).WestlawNext. Web. 2 Nov. 2014.

[4] Belbachir v. Cnty of McHenry, 726 F.3d 975 (7th Cir. 2013).

[5] Ukofia v. Department of Homeland Sec., 2010 WL 597059 (D.Minn.2010).

[6] Bivens, 403 U.S. at 410. 

[7] Barnes, 381.

[8] Ashcroft v. Iqbal, 129 S. Ct. 1937, 556 U.S. 662, 173 L. Ed. 2d 868 (2009).

[9] Iqbal, 129 S. Ct. at 1942.

[10] Iqbal, 1954.

[11] Iqbal, 1949.

[12] Iqbal, 1951.

Leave a Reply

Your email address will not be published. Required fields are marked *