SCOTUS Thomas Thinks You Shouldn’t Be Able to Sue the Feds for Civil Rights Violation

[Edge-]

https://lawandcrime.com/legal-analys...ts-violations/

Conservative Supreme Court Justice Clarence Thomas wants federal law enforcement agents to have something like absolute immunity from civil rights lawsuits. In a Tuesday decision, the conservative Supreme Court majority allowed Customs and Border Protection (CBP) agents to shoot and kill innocent people with no recourse for the surviving family members.

In a case stylized as Hernández v. Mesa, U.S. Border Patrol Agent Jesus Mesa, Jr., shot and killed 15-year-old Mexican national Sergio Adrián Hernández Güereca while he was either playing a game (according to his family) or backtracking from a failed immigration attempt (according to the government). Hernández was on Mexican soil when he was shot in the face and killed. Mesa fired at the boy while he was on U.S. soil.

Hernández’s family sued the U.S. government seeking redress and damages for the untimely death of their child. The high court’s conservatives decided that was not to be.

The boy’s family sued using the right of action known as a Bivens claim—the only remedy for suing a federal agent who deprives someone of their constitutional rights. A Bivens claim is functionally similar to a § 1983 civil rights claim with one major exception that’s relevant for our purposes here: § 1983 claims are enshrined in statute while Bivens claims result from a long-eroded Supreme Court decision.

In 1971, Bivens v. Six Unknown Named Agents was decided on the basis that Federal Bureau of Narcotics agents violated the Fourth Amendment rights of Webster Bivens by entering his home, searching it and then arresting him without a warrant. The high court threw down the gauntlet against this fairly common and illegal law enforcement practice—not only tossing the drug charges but allowing Bivens to sue for redress and damages by finding an implied right because the right violated by federal agents was so important and sacrosanct under the Bill of Rights and the U.S. Constitution.

Since then, however, conservatives have attempted to claw back the rights established by the Bivens decision. Tuesday’s decision is another example.

The court’s conservatives don’t want people to be able to hold the government accountable for these sorts of things—and the court’s liberals have long had little more than just an abiding patience for the ruling. While conservative majorities have long held animus for Bivens—and have actively and successfully chipped away at the rights once afforded against federal tyranny—the liberal minority has declined to extend the landmark ruling as well.

Broadly, the ruling in Hernández v. Mesa was predictable and predicted. The conservative justices declined to extend Bivens for the umpteenth time and the liberals offered a tepid defense.

“If I said that CPB shot a child and the family was seeking damages, every non-lawyer would think ‘of course’. The court says no,” Current Affairs Legal Editor and Lawyers for Civil Rights Staff Attorney Oren Nimni noted. “Doctrinally it’s unsurprising what the court has done to Bivens, but as a human matter officer immunities plus the death gasps of Bivens are disturbing.”

Thomas, joined by fellow conservative Justice Neil Gorsuch, took things a bit further. Instead of merely declining to extend Bivens, he authored a brief concurrence advising the nation’s high court to make the entire Bivens family of rulings disappear.

”The Court correctly applies our precedents to conclude that the implied cause of action created in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), should not be extended to cross-border shootings,” the controversial justice begins. “I therefore join its opinion.”

Then comes the kicker:

I write separately because, in my view, the time has come to consider discarding the Bivens doctrine altogether. The foundation for Bivens—the practice of creating implied causes of action in the statutory context—has already been abandoned. And the Court has consistently refused to extend the Bivens doctrine for nearly 40 years, even going so far as to suggest that Bivens and its progeny were wrongly decided. Stare decisis provides no “veneer of respectability to our continued application of [these] demonstrably incorrect precedents.” To ensure that we are not “perpetuat[ing] a usurpation of the legislative power,” we should reevaluate our continued recognition of even a limited form of the Bivens doctrine. “‘Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action.’”

“The analysis underlying Bivens cannot be defended,” Thomas continues. “We have cabined the doctrine’s scope, undermined its foundation, and limited its precedential value. It is time to correct this Court’s error and abandon the doctrine altogether.”

The practical effect of discarding Bivens altogether, of course, is that there would be no mechanism for aggrieved parties to sue bad actor federal agents for violation of their constitutional and civil rights. The conceit, however, is Thomas and the court’s conservatives acting out of concern about the “usurpation of legislative power” by judges who make law from the bench.

University of Iowa Law Professor Andy Grewal offered a typical originalist defense.

“Is this really a ‘refusal,’ or an acknowledgement that causes of action generally arise through congressional enactments?” Grewal asked.

Legal journalist Cristian Farias answered separately: “Obviously Congress disagrees, having never disturbed Bivens.”

Clarence Thomas is making the argument for an unaccountable federal law enforcement system, with citizens unable to sue for redress should their civil rights, and 4th Amendment rights, be violated.

Want to know why everyone keeps saying conservatives want an authoritarian, centralized government with an extremely strong and largely unaccountable executive?

Because of shit like this. Because conservatives in the US aren't hiding this anymore and are being much more open about their anti-Democratic views that place those in power above the citizens of the US.

This is what spending the last 50 years politicizing and reshaping the SCOTUS has done for this country. Thanks, Nixon and Republicans for kicking this off and keeping it going.

[Shadowferal]

Turn back the clock 50 years...he'd either scream for civil rights then, or play Uncle Thomas for scraps.

[Inuyaki]

Holy fuck... now even the SC goes public with their authoritarian dreams?
And let's face it, if this is his position, it would win 5-4...

You have to stack the SC next year, there is no other way at this point

Edit
Somehow I switched Roberts and Thomas... so maybe this is still not 5-4... maybe

[Jonnusthegreat]

I don't think a civil case should happen in this case - it should be a criminal case the he should be put in jail.

HE shouldn't be liable for civil damages, the government should be.

[Fugus]

Debating this with someone and they pointed something out but they claim it is more but I don't really see that part.

But their defense partly boiled down to them being across the border. So they might have to get the Mexican government to extradite.

The whole non-citizen part they talked about too, but I am not sure that really matters as much.

[Trifle]

Debating this with someone and they pointed something out but they claim it is more but I don't really see that part.

But their defense partly boiled down to them being across the border. So they might have to get the Mexican government to extradite.

The whole non-citizen part they talked about too, but I am not sure that really matters as much.

I'm not really sure the Mexican government has jurisdiction, the crime happened overseas (as it were). And realistically there's no way in hell the US government would agree to the extradition anyway.

[Fugus]

I'm not really sure the Mexican government has jurisdiction, the crime happened overseas (as it were). And realistically there's no way in hell the US government would agree to the extradition anyway.

Either they extradite him, they try him, or they set the precedence that Mexicans can shoot them across the border and get away with it as well. We know the cartels will have fun with that.

[Captain N]

And it's official -- Supreme Court Rules Border Patrol Agents Who Shoot Foreign Nationals Can't Be Sued

As was called out previously this was a 5-4 decision

https://tinyurl.com/w4283r2

(Using TinyURL to a NPR Link since the actual link was incredibly long)

[Blur4stuff]

I'm sure this won't be abused at all.

[Fugus]

Seems the US has an 3 options.

1) We extradite him to Mexico who hold him accountable.

2) We hold a trial here and hold him accountable.

3) We just set a precedence where Mexicans can kill Americans over the border without repercussions as that will be following our own rules. Lets see how many pissed of Mexicans or Cartel members will start killing border patrol. Not even trying to cross, just outright killing them.

Wonder how many would start doing that scene from the Punisher on Netflix were he snipes the drug dealer from across the border.

[RaoBurning]

Turn back the clock 50 years...he'd either scream for civil rights then, or play Uncle Thomas for scraps.

He could start a podcast with Candace Owens about how separate but equal is good and legal, actually, all the while mitigating their own suffering by helping inflict more on others.

[Flarelaine]

This lines up with all the cases of US servicemen killing people abroad only to be spirited home and given slaps on the wrist or not even that. It's a strongly worded message of "Fuck you, we can do whatever".

[PACOX]

What an asshat.

It was literally the Fed that whipped the states into shape when states were treating black people as second class citizens. His ass would not be s Justice if not for the ability to sue the Fed.

Also how do you uphold the Constitution if you can't sue the Fed for civil rights violations?

[Polyxo]

What happens if a fed shoots Thomas in the face?

Well obvs he doesn't lose his federalehood.

[Orbitus]

I don't think we ever allowed non-Americans to sue the government for shit like that and I think that's a reasonable decision. His government (Mexican) can demand answers and compensations. This is how it's usually done when it's an international incident.

Just because he isn't a citizen, doesn't mean our constitution doesn't effect them.

[Zaydin]

I don't think we ever allowed non-Americans to sue the government for shit like that and I think that's a reasonable decision. His government (Mexican) can demand answers and compensations. This is how it's usually done when it's an international incident.

So does that mean it's okay if a Mexican shoots an American if the Mexican is in Mexico? Good to know.

[Draco-Onis]

I don't think we ever allowed non-Americans to sue the government for shit like that and I think that's a reasonable decision. His government (Mexican) can demand answers and compensations. This is how it's usually done when it's an international incident.

Not a good logic our constitution guarantees rights to every person and liabilities as well. If you are going by that logic then Americans cannot get compensation from foreign governments or persons for any wrong doing.

[Daelak]

https://lawandcrime.com/legal-analys...ts-violations/



Clarence Thomas is making the argument for an unaccountable federal law enforcement system, with citizens unable to sue for redress should their civil rights, and 4th Amendment rights, be violated.

Want to know why everyone keeps saying conservatives want an authoritarian, centralized government with an extremely strong and largely unaccountable executive?

Because of shit like this. Because conservatives in the US aren't hiding this anymore and are being much more open about their anti-Democratic views that place those in power above the citizens of the US.

This is what spending the last 50 years politicizing and reshaping the SCOTUS has done for this country. Thanks, Nixon and Republicans for kicking this off and keeping it going.

Stop trying to believe that conservatives, both politicians, voters, policymakers, and judges are acting on good faith. They aren't, they never will. For conservative voters, it's about hero worship and subjugating themselves to their ideology and their supreme leader; for conservative in government, it's only about the consolidation of power and the elimination of the separation of powers. It's been their overriding cause since the expulsion of King George's grip on the colonies.

[Beefhammer]

Has there ever been a more useless piece of shit wasting space on the Court? The asshole rarely speaks or asks questions in session, did not recuse himself fro Citizens United despite his wife having being heavily involved in it, was clearly an Affirmative Action nomination, totally wants other minority's to pull themselves up by the bootstraps.

[Trunksee]

So if this were the other way around can we sue the mexican government? This is not about whether or not what he did was a crime. It doesnt say you cant sue the man personally all it says is anyone from outside of this country cannot sue our government as liable. How is this any different from what would happen if it were the other way around? You could try to sue the mexican government in their country bit it would go no where.