Second Circuit rejects Bivens claim against U.S. Marshall

If you want to sue federal officials for constitutional violations, you have to bring a Bivens action, named after the 1971 Supreme Court case that recognized such claims even though no federal statute authorizes such claims. (We do have a federal statute that allows you to sue state and local officials for constitutional violations, known as Section 1983). Since Bivens claims are judge-made, the Supreme Court has rarely allowed anyone to actually bring such a claim, expressing telling the lower courts to limit its application. That plays out here, and the plaintiff, who claims U.S. Marshalls and court officers used excessive force while restraining him in the courtroom, loses the case.

The case is Edwards v. Gizzi, issued on July 12. Plaintiff yelled at the federal judge during sentencing following his conviction for sexual activity with a minor. During his tirade, plaintiff got aggressive and lunged toward the Assistant United States Attorney. The U.S. Marshall restrained plaintiff, breaking his arm. Hence the Bivens claim.

Did you know that the Supreme Court has only twice recognized claims under Bivens? It held in 1979 that you can sue for employment discrimination under Bivens. It held in 1980 that a federal prisoner could sue his jailers under Bivens. But that was a very different Supreme Court. All the other Bivens claims over the years have been rejected, and the Court has told us over and over (about 12 times) that Bivens has limited application, as cases like this really should be permitted by federal statute, not Supreme Court case law. My prediction is that Bivens will be overturned for good one of these days. 

Anyway, Bivens' limited application does not prevent people from bringing these lawsuits. Even I tried to win a Bivens case about 15 years ago and lost in the Court of Appeals. That was plaintiff's approach here. But Judge Park, writing for the 2-1 majority, and over Judge Parker's dissent, applies the two-part test in determining if plaintiff may proceed here. Plaintiff fails both tests. First, this case arises in a new context (an excessive force claim under the Eighth Amendment, and a claim against U.S. Marshalls and court security). A new context is no place for a Bivens case, the Supreme Court has said. In addition, there are no special factors that would permit a Bivens claim to proceed. The "special factors" test is the second part of the Bivens test. This is so because there are other ways for plaintiff to win his case, in particular a claim under the Federal Torts Claims Act.