In a case argued before the U.S. Supreme Court last year, James King, a college student walking to work in Grand Rapids, Mich., was mistaken for a suspect by two plainclothes members of a fugitive task force — one federal, one local — who beat him so savagely that bystanders called 911. The government contends that he should not be able to sue either officer.
A few exceptions to this broad immunity have been allowed, under a 1971 Supreme Court case in which federal narcotics officers searched a man’s house, arrested him in front of his family and subjected him to a strip search, all without a warrant. The court said the man, Webster Bivens, could seek damages for Fourth Amendment violations even if Congress had not specifically authorized such lawsuits.
But in recent years the court, now more conservative, has distanced itself from the Bivens decision, emboldening some lower courts to interpret it so narrowly that would-be plaintiffs now have virtually no recourse — a situation that lawyers for Ms. Mohamud are trying to address in her latest appeal.
“The reductio ad absurdum here is all the defendants in our cases could have intentionally, on camera, shot and killed these people and laughed while they did it, and the courts are saying, ‘Well, sorry, it’s really a policy decision for Congress; we can’t let you sue them,’” said Patrick Jaicomo, a lawyer with the Institute for Justice, a public-interest law firm that is representing Ms. Mohamud and others with similar cases.
Some people with complaints against law enforcement have been told they cannot sue because the circumstances did not precisely replicate what happened to Mr. Bivens.
When José Oliva, a 70-year-old Vietnam veteran, was choked and assaulted at the entrance to a Veterans Affairs hospital, for example, the U.S. Court of Appeals for the Fifth Circuit barred his claim in part because the federal officers involved had not handcuffed or strip-searched him in front of his family.