Using a Bivens Remedy/Claim I think I understand the fundamentals of Bivens v. Six Unknown Fed. Narcotics Agents. My understanding is that Bivens created a cause of action for the 4th Amendment. Without the cause of action, you wouldn't be able to sue federal officials for violating the 4th Amendment. Now, my question is this: Before Bivens was ruled, how would you sue a government official in court for a constitutional violation, as there was no cause of action? According to my knowledge, the Supreme Court has only afforded a cause of action similar to that of Bivens to some amendments. Now, if I wanted to sue a government official for violating the 1st amendment (which, to my understanding, does not have an implied cause of action similar to that of Bivens), how would that work? I'm generally very confused about how this all works and interacts with each other. Bivens: https://supreme.justia.com/cases/federal/us/403/388/#tab-opinion-1949369
The case is Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Liability under Bivens applies to federal agents who violate a direct constitutional right in a similar way that state officials, or others acting &quot;under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory&quot; may be sued under 42 USC § 1983 for any action that causes &quot;the deprivation of any rights, privileges, or immunities secured by the Constitution and laws&quot;. Section 1983 does not apply to persons acting under federal laws, and thus Bivens becomes a counterpart. It is true that Bivens applies directly to the Fourth Amendment. But it quotes favorably Bell v. Hood, 327 U. S. 678 (1946), specifically the passages: where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief [at page 684] and it is . . . well settled that, where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done. [also at page 684] Neither of these passages singles out the fourth amendment. Nor does the logic of Bivens depend on anything specific to the Fourth amendment, as opposed to the Fifth, the Sixth, or the First. I don't know if a case has been brought under Bivens alleging violation of these or other federal constitutional provisions granting specific rights to individuals. The logic of Bivens would require a firm and clear grant of rights, but, for example the Due Process Clause of the fifth is such a grant. If the courts were to hold that a particular claim could not be brought under Bivens because the Supreme Court has not authorized such an extension of Bivens, then Bivens itself describes an alternate procedure. The opinion points out that: [at Pages 390-391] petitioner may obtain money damages to redress invasion of these rights only by an action in tort, under state law, in the state courts. In this scheme, the Fourth Amendment would serve merely to limit the extent to which the agents could defend the state law tort suit by asserting that their actions were a valid exercise of federal power: if the agents were shown to have violated the Fourth Amendment, such a defense would be lost to them, and they would stand before the state law merely as private individuals. Candidly admitting that it is the policy of the Department of Justice to remove all such suits from the state to the federal courts for decision, respondents nevertheless urge that we uphold dismissal of petitioner's complaint in federal court and remit him to filing an action in the state courts in order that the case may properly be removed to the federal court for decision on the basis of state law. This procedure the Court rejected in Bivens as unneeded, but it did not say that such a procedure could not be followed. I would think that the logic of Bivensshould extend to the invasion, by federal officials (other than judicial officers), of any right explicitly and specifically granted to individuals under the constitution. But one can never tell how the courts will react when asked to extend a previous decision. The Bivens did not createa cause of action, or at least it did not purport to do so. It simply held that the longstanding rights grantef under the Fourth Amendment could result in money damages even n the absence of a specific statute providing for such damages. The Bivens Court wrote: [at Page 403 U. S. 402] The contention that the federal courts are powerless to accord a litigant damage for a claimed invasion of his federal constitutional rights until Congress explicitly authorizes the remedy cannot rest on the notion that the decision to grant compensatory relief involves a resolution of policy considerations not susceptible of judicial discernment. Thus, in suits for damages based on violations of federal statutes lacking any express authorization of a damage remedy, this Court has authorized such relief where, in its view, damages are necessary to effectuate the congressional policy underpinning the substantive provisions of the statute. J. I. Case Co. v. Borak, 377 U. S. 426 (1964); Tunstall v. Brotherhood of Locomotive Firemen &amp; Enginemen, 323 U. S. 210, 323 U. S. 213 (1944). Cf. Wyandotte Transportation Co. v. United States, 389 U. S. 191, 389 U. S. 201-204 (1967) The OP wrote in a comment: What's the point of Bivens if causes of action still exist for amendments like the 1st Amendment, that are not part of Bivens? What's the difference between suing somebody under the 4th amendment through Bivens, and suing somebody under the 1st amendment? This is merely a matter of terminology. If the US Supreme Court now recognizes a right to sue for money damages directly under the First Amendment, that will be called &quot;an extension of Bivens&quot;. If it rules that such a suit would need a new law from Congress to authorize it (as Sec 1983 authorizes suits against state officials), that would be cal;led &quot;refusing to extend Bivens. All suits for damages directly under a constitutional provision where there is no specific federal law authorizing money damages are now called Bivens suits, because that is the case that specifically held that such damages were permitted without such a law.
In principle, police are liable for the safety of anyone they detain. If an officer creates a hazardous condition, as was described in this scenario, he or his agency (which effectively means the taxpayers who fund his agency) can be held liable for damages resulting from that action. (Whether it is the officer or instead the taxpayers who get stuck with the bill is a separate question of "qualified immunity.") This idea has been formalized under two theories: The "special relationship doctrine" would apply in this case because the officer was detaining the driver. Otherwise, the liability could be argued under the more broad "state-created danger doctrine."
If I want to protest for or against President Trump and decide to wear a Trump mask, isn't that speech protected by the first amendment? Probably. The matter of intent, in any event, is for a court to decide (if the prosecutor determines that the question should even be presented to a court). For example, someone seeking to rob a bank in a mask would probably fall afoul of this law, and it's not likely that using a mask of a political figure would enable a successful first-amendment defense. For a political protestor, it could be easy to show that the intent was to make a political statement and not to conceal identity, in which case it would not be necessary to consider the constitutional question, for a critical element of the crime would be missing. That is, if you say "I wasn't trying to hide my identity," and the court believes you, then you haven't violated the statute. That is a separate question from whether the statute is constitutional. For the law itself to be unconstitutional, it would have to be unconstitutional in every application, generally. If some applications of the law are unconstitutional, the law could stand, but prosecutions for the unconstitutional application would not succeed.
Since the US Federal government didn't try to pass any such law (nor would it have been politically possible in the period shortly before the US Civil War), there is no way to know with assurance how such a hypothetical law would have been addressed by the Supreme Court of the day, nor by the various states. Congress legally could have prohibited the importation of slaves after 1808, the constitution specifically grants this power. Congress legally could have prohibited interstate commerce in slaves. Congress could have repealed the Fugitive Slave Act. Congress legally could have imposed heavy taxes on the ownership of slaves. If heavy enough these could have been a de facto abolition. A series of Presidents could have appointed Justices inclined to overturn the Dred Scott decision (denying the possibility of citizen ship for most Negros, and denying that a "free" state could free slaves temporarily resident there). Congress could have passed laws requiring negro votes to be counted in federal elections. Various of the above hypothetical measures might have made slavery less economic, and thus less common, in time. Note that it is not likely that any actual Congress would have passed most of them. But I do not see how, absent a constitutional amendment, and absent a war, a simple Federal statute could have constitutionally abolished slavery de jure throughout the US. Lincoln's Emancipation Proclamation was legally justified as a war measure, a confiscation from those in rebellion. It did not affect loyal slave states, such as Maryland. And it was never seriously tested in court anyway.
There is, of course, no way to tell how the Court would deal with such a case today. This is not a frequently litigated issue, with lots of case law. I note that in the case you link to, the court limited the statute to false claims made "with a fraudulent purpose". This normally means that the claimant is attempting to secure an improper financial or materiel advantage. In the United States v. Tandaric case, the person convicted had falsely claimed to be a US Citizen on an employment application for a company which did not hire non-citizens, and so gained a job through this false statement. He could have been convicted of ordinary Fraud. The court has not been as protective of Fraud under the First Amendment as it has been of speech generally, or even of false but non-fraudulent speech. I am not at all sure if the court would overturn this law in a similar case today. Edit: In the United States v. Achtner case, the court wrote: But we agree with the District Court that the representation of citizenship must still be made to a person having some right to inquire or adequate reason for ascertaining a defendant's citizenship; it is not to be assumed that so severe a penalty is intended for words spoken as a mere boast or jest or to stop the prying of some busybody, ... This seems to dispose of the example in the question of a neighbor who is merly inquiring as to the character of the area, or perhaps from simple curiosity, and a false speaker who seems to get no direct benefit or advantage from the falsehood. Both linked cases involved false statements made to employers or potential employees, during wartime at that, with the false speaker's employment apparently at stake.
The closest the Supreme Court has gotten to criminal liability for official acts seems to be Nixon v. Fitzgerald, 457 U.S. 731 (1982). There it addressed civil liability and held that the U.S. President &quot;is entitled to absolute immunity from damages liability predicated on his official acts.&quot; It's unclear how the Justices would decide criminal liability for official acts. (Though some might argue that non-precedential logic in Fitzgerald suggests the Court could extend immunity to the criminal context as well.) As to homicide, murder and manslaughter are federal crimes. See 18 U.S.C. §§ 1111–1112. The latter involves the commission &quot;of a lawful act which might produce death&quot; &quot;without due caution and circumspection.&quot;
We look first to the Hutaree prosecution of 2012, US v. Stone where defendants were charged with seditious conspiracy: Specifically, the Government charges Defendants with conspiring to “oppose by force the authority” of the United States Government. Essential to that charge, Defendants must have agreed to oppose some positive assertion of authority by the United States Government; mere violations of the law do not suffice. Baldwin v. Franks, 120 U.S. 678, 693 (1887). In Baldwin, SCOTUS found (emphasis added) that All, therefore, depends on that part of the section which provides a punishment for ‘opposing’ by force the authority of the United States . . . . This evidently implies force against the government as a government. To constitute an offense under the first clause, the authority of the government must be opposed; that is to say, force must be brought to resist some positive assertion of authority by the government. A mere violation of law is not enough; there must be an attempt to prevent the actual exercise of authority.
You're looking for the Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. This prohibits the police from harassing you and stopping you without cause. It is not self-enforcing, though, so you can sue for a violation under 42 USC 1983: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. This is the normal means of enforcing your rights under the Fourth Amendment, as well as the First, Second, and so on.