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

  • By Terrence Rubino
  • 22 Sep, 2015
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 the government.
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. 
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.

GSK&G Legal News

By Darren Griffis 06 Nov, 2017

In a decision that will significantly impact the evidence that can be used against defendants charged with driving under the influence of marijuana (or, as they say in Massachusetts, operating under the influence or “OUI”), The Massachusetts Supreme Judicial Court recently restricted the extent to which field sobriety tests (FSTs) can be used as evidence of marijuana intoxication at trial. In Massachusetts, if a defendant is charged with OUI for allegedly being under the influence of alcohol, a police officer can testify about the person’s level of intoxication based on how they perform on the FSTs. However, the Court found that police officers may not use their observations of a defendant’s performance on these tests as a basis for drawing a conclusion about whether the defendant was under the influence of marijuana.

The case, Commonwealth v. Gerhardt , stems from a 2013 traffic stop in which the defendant, Thomas Gerhardt, allegedly “failed” multiple FSTs after being pulled over by a state trooper. Based on the defendant’s inability to adequately perform the tasks involved in these FSTs, the officer testified that he came to the conclusion that the defendant was “high” after smoking marijuana. Mr. Gerhardt’s attorney argued that such tests were designed to test one’s alcohol intoxication level and that they do not directly translate to the context of marijuana use. Fortunately for Mr. Gerhardt, the SJC agreed with that argument.

 While standard FSTs are generally accepted by courts as reliable representations of a person’s intoxication from alcohol consumption, there is no scientific consensus about whether the tests are indicative of marijuana impairment. According to the SJC’s decision in Gerhardt , scientists have found that, unlike alcohol, which has a relatively predictable effect on most people, marijuana can affect different people in vastly different ways. Because of this variation, the court concluded that the FSTs do not necessarily predict whether a defendant is under the influence of marijuana. Thus, the court concluded that an officer may only testify as to his or her observations of a defendant’s performance on the tests and not about whether he or she concluded that a defendant was under the influence of marijuana based on the defendant’s ability to complete the administered tasks. 

Furthermore, after the court’s decision in Gerhardt , an officer may not testify that a defendant “passed” or “failed” any FST, since that language “improperly implies that the FST is a definitive test of marijuana use or impairment.” The court also instructed that officers should avoid calling the FSTs “tests” in these types of cases and should instead refer to the tests as “roadside assessments” to prevent a jury from impropely jumping to a conclusion that the tests are scientific evidence of a defendant’s sobriety or intoxication. Finally, the court included model jury instructions for future trials that will tell juries that evidence of performance on FSTs alone is not sufficient to support a finding that a defendant’s ability to drive safely was impaired due to the consumption of marijuana.

If you are facing criminal charges, including charges that you drove a car while under the influence of marijiuana, please contact James Gribouski or Darren Griffis at Glickman, Sugarman, Kneeland & Gribouski for more information about how they can put their legal knowledge to work for you.

By Darren Griffis 01 Nov, 2017

November 1, 2017, East Brookfield District Court, East Brookfield, Massachusetts

Attorney James J. Gribouski’s client, a twenty-two year old Webster, Massachusetts woman was stopped by a Dudley, Massachusetts police officer for allegedly crossing the middle lines on the roadway. After the client performed standardized field sobriety tests, including the walk and turn and one-legged stand, the officer arrested her for OUI.

Attorney Gribouski obtained the police reports and booking video, and after reviewing that evidence, recommended that his client proceed to trial. At trial, Attorney Gribouski cross-examined the police officer on his observations of the client and presented a copy of the booking video in his client’s defense. After the judge heard the cross-examination of the officer and watched the booking video, Attorney Gribouski's client was acquitted of the OUI charge.

By Darren Griffis 31 Oct, 2017

October 27, 2017, Central District Court of Worcester, Worcester, Massachusetts

Attorney James J. Gribouski’s client, a twenty-seven year old native of Revere, Massachusetts, was happily cruising down Route 146 at 94 miles per hour in Uxbridge, Massachusetts, smoking a bowl of marijuana when a Massachusetts State Trooper pulled him over. After the client admitted that he had just smoked the marijuana, the Trooper requested that he perform field sobriety tests and then charged the client with OUI marijuana.

During the pendency of the case, the Massachusetts Supreme Judicial Court issued an important decision in  Commonwealth v. Gerhardt .  In that case, the SJC ruled that police can no longer offer an opinion as to whether a person was impaired by marijuana based on field sobriety tests (which are now to be referred to as "roadside assessments). Based on that recent ruling and his evaluation of the facts in the trooper's report, Attorney Gribouski recommended that his client proceed to trial, and the client was quickly acquitted.

By Darren Griffis 26 Oct, 2017

October 26, 2017, Concord District Court, Concord, Massachusetts

Attorney James J. Gribouski’s client was stopped at a Massachusetts State Police Sobriety Checkpoint in Concord, Massachusetts. After performing field sobriety tests he was arrested for OUI. After carefully reviewing the police reports that he obtained, Attorney Gribouski recommended that his client proceed to trial.

At trial, Attorney Gribouski was able to point out several issues with the prosecution's case during cross-examination of the arresting officer. For example, he established that she did not observe that his client had slurred speech or was unsteady on his feet. Additionally, the officer testified that she did not see the client drive in an erratic manner.  After establishing these favorable facts, Attorney Gribouski was able to rest his case without calling any witnesses. The judge then found his client not guilty of OUI.  

By Darren Griffis 23 Oct, 2017

In a landmark recent decision, Brangan v. Commonwealth , the Massachusetts Supreme Judicial Court held that judges must take a defendant’s financial resources into consideration when setting bail in a criminal case. Moreover, the SJC made it clear that, where the amount of bail appears to exceed a defendant’s financial resources, a judge must provide written or oral findings of fact and a statement of reasons for the bail decision.

This ruling is the result of a challenge to a lower court’s refusal to lower a $50,000 cash bail for a defendant who was confined for three-and-a-half years in Hampden County pending armed robbery charges. In reversing the Superior Court’s denials of the defendant’s requests for a lower bail, the SJC ruled that the judges failed to properly account for the defendant’s financial resources when in setting the amount of bail in the case.

According to the court, judges violate defendants’ due process and equal protection rights when they set bail amounts that have the effect of confining indigent defendants while charges are pending without regard for their financial constraints. Defendants who cannot afford to post bail suffer a loss of liberty during a period when they are supposed to enjoy a presumption of innocence and also lose the ability to fully participate in the preparation of their defense. While the court unfortunately stopped short of requiring judges to set a bail in an amount a defendant can afford, the decision in Brangan made it clear that judges must more clearly delineate the reasons for setting a bail that a defendant will not be able to pay.

Although judges were already required to consider a defendant’s financial resources in setting bail, this ruling should require judges to more carefully weigh that particular consideration, as well as requires judges to provide a statement of reasons when the bail amount exceeds the defendant’s resources.

If you are facing criminal charges, please contact James Gribouski and Darren Griffis at Glickman, Sugarman, Kneeland & Gribouski for more information about how they can put their legal expertise to work for you.

By Darren Griffis 23 Oct, 2017

In August, Massachusetts’ Executive Office of Public Safety and Security (the “EOPSS”) launched an investigation into the Office of Alcohol Testing (the “OAT”), the agency responsible for ensuring the reliability of breath test machines used by police officers in drunk driving investigations. The EOPSS recently released its summary of that investigation, which concluded that the OAT systematically withheld documents from defense attorneys during the pendency of a lawsuit challenging the reliability of breathalyzer test results because of an “unwritten policy not to turn these documents over to any requester.”  The documents that were withheld contained evidence that some of the breathalyzer machines were not properly calibrated during the process used to certify the devices.  

As a result of the investigation, the head of the OAT was fired. The EOPSS report laid the blame for the failure to provide the potentially exculpatory evidence squarely on the leadership of OAT, concluding that the agency committed “serious errors of judgment in its responses to court-ordered discovery, errors which were enabled by a longstanding and insular institutional culture that was reflexively guarded . . . and which was inattentive to the legal obligations borne by those whose work facilitates criminal prosecutions.” OAT’s failure to turn over documents allowed prosecutors handling the cases in which defense attorneys were challenging the breath test machines’ reliability to incorrectly represent that the state had complied with its discovery obligations.

Questions about the reliability of the particular breathalyzer (the Draeger 9510) were initially raised in 2015, but were ultimately dismissed by prosecutors, who maintained that any flaws in test results were because of mistakes made by officers in calibrating the machines and not because the machines themselves were malfunctioning. Defense attorneys again raised suspicions about the tests in July after a judge ordered the State to hand over roughly 400 worksheets that accompany breathalyzer calibration checks performed by state chemists, which had strangely not been disclosed by the State. When the missing worksheets were finally turned over, defense attorneys discovered that they documented serious flaws with the results that OAT obtained during the certification process.

The investigation raises series questions about over 58,000 drunk-driving prosecutions in which the Draeger 9510 machines were used. These cases date back to 2011 that and could impact more than 750 defendants over that time period.  A further hearing on the problems with the breath test machines is scheduled for mid-November.

Massachusetts has been involved in a series of scandals involving state laboratories’ failure to properly maintain and analyze evidence. The convictions of two state chemists, Annie Dookhan and Sonia Farak, resulted in the dismissal of more than 21,000 charges against defendants who had drug cases. This investigation by EOPSS and the ongoing litigation regarding the state’s use of the breathalyzer machines is especially critical given that the OAT is the only agency in the state that performs scientific testing that is not audited by an independent accrediting organization.

If you pleaded guilty to, or were convicted of, driving under the influence of alcohol or OUI as the result of breath test results, you may have grounds to challenge your conviction. Although this post does not constitute legal advice, you should contact Attorneys James Gribouski and Darren Griffis at Glickman, Sugarman, Kneeland & Gribouski to find out whether your case may be impacted by the pending investigation.

By gskandg 29 Sep, 2017
September 28, 2017, Central District Court of Worcester, Worcester, Massachusetts Attorney James J. Gribouski’s client, a thirty-two year old Worcester, Massachusetts man was stopped in Auburn, Massachusetts by an Auburn police officer for operating without headlights.  After speaking with the client and detecting a strong odor of fresh marijuana, the client was requested to perform […]
By gskandg 27 Sep, 2017
September 26, 2017, Central District Court of Massachusetts, Worcester, Massachusetts Attorney James J. Gribouski’s client, a twenty year old Assumption College student was stopped by an Assumption College campus police officer for not having any taillights.  After giving him field sobriety tests, the officer arrested the client for OUI/DWI. Attorney Gribouski recognized that the roads […]
By gskandg 27 Sep, 2017
September 26, 2017, Central District Court of Worcester, Worcester, Massachusetts Attorney James J. Gribouski’s client, a twenty-six year old Worcester, Massachusetts woman was stopped by a Massachusetts State Trooper on Harding Street in Worcester, Massachusetts.  After giving the client field sobriety tests, the trooper arrested the client for OUI/DWI. Attorney Gribouski obtained the police reports […]
By gskandg 27 Sep, 2017
Operating a motor vehicle while under the influence (OUI) is a serious offense no matter where you live. But in Massachusetts, the repercussions you may face if you are convicted of this offense can be particularly harsh. A first conviction can get you up to two-and-a-half years in jail, a year-long driver’s license suspension, and […]
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