Saturday, January 5, 2013

Why Aren't Bivens' Actions Successful--or Are They?

     Thank you, Mr. Bivens, for suing the federal government after six FBI agents barged into your home without cause and arrested you--again without cause--back in 1971.  Thank you for refusing to accept the opinions of two lower court judges who told you you didn't have a case, and for forcing the Supreme Court to recognize, at last, what it means to have Fourth Amendment rights.
     But why hasn't the Supreme Court's 1971 decision--that you had a right to be compensated with a cash payment (since your reputation, which could be destroyed by the government, couldn't in reverse fashion, be reconstituted)--why hasn't that important legal declaration been the basis for many other corrective actions against those government agents who misuse their power?
     Surely, our government agents--being human--can't have been so perfect over the past forty-one years that they haven't ever overstepped their bounds, or run rampant over ordinary citizens, or been a little too emphatic when they decide, without the aide of a court, jury, or counsel for the defense, that some poor bugaboo is guilty and doesn't deserve the right to know of what.
     It seems to be a foregone conclusion among lawyers that anyone who attempts to do what Mr. Bivens did is going to fail.
    "You don't win when you sue the federal government," I've been told by my own lawyers.  It has been said that in the first fourteen years after the Bivens decision twelve thousand similar claims were brought against the federal government, and only four succeeded.   The usual explanation is that the feds are protected by statutes conferring immunity, based on the idea that our civil guardians shouldn't have to be afraid of making a mistake when they think someone (like a terrorist? like me?) might be about to endanger large populations.
     A 2010 Stanford Law Review analysis of Bivens cases in five district courts over three years casts some doubt on my lawyers' pessimistic statistics (Stanford Law Review, Vol. 62,  Nbr. 3. March 2010).
The success rate for Bivens suits ranges from 16% to over 40%, depending on the type of case and the zeal of the lawyers, which is much higher than the guesses of attorneys, and makes it less likely that sovereign immunity is as thick a bulletproof vest as has been assumed.
     The author of this study criticizes, along with many commentators over the past few decades, the model for getting compensated by the government if one should happen to be a victim of misconduct.  It seems that citizens who believe they have been wronged must follow an "individual liability" route, in which they act against the individual officer who is accused of violating a constitutional right.
      But just as a person who claims to be a victim of medical malpractice in the hospital can sue the doctor, the hospital, and even the corporation that owns the hospital, so should a citizen who has been wronged be able to bring an action against the larger entity within which a blameworthy federal agent works.  Otherwise, the chance of being compensated in any meaningful way is unlikely.  More importantly, a successful legal action against an individual officer is unlikely to change the system which permitted the wrongdoing in the first place, any more than a lawsuit against a doctor--but not the hospital--for, say, an avoidable, mortal infection, would force a hospital to change its protocols for infection prevention and thereby protect others from suffering similar devastation.  To make matters worse, federal agents are permitted to make an immunity defense (e.g., "I was just acting in the line of duty with the information available to me") in Bivens cases, making it much more difficult to prevail against the government.
     The Stanford study, however, challenges this longstanding belief that Bivens cases aren't successful on account of  federal agents having qualified immunity.  An analysis of data from this study, as well as data culled from similar studies, reveals the following:  of the Bivens actions that fail, most do so because the court considered the cases frivolous, or without merits, or because other means of correcting an unfairness hadn't yet been exhausted.
     "The doctrine of qualified immunity is of much greater symbolic than practical importance..." the author says.  "It may be that the prospect of qualified immunity deters lawyers from accepting the most difficult Bivens cases, thus operating as an unseen thumb on the scale in favor of maintaining the legal status quo."
     Perhaps my lawyers need a little more nudging from me.  If the raid on my clinic is an example of the misuse of government power, or laziness on the part of the prosecutors when it came to doing their homework before carrying out a raid and taking my clinic's money, or the agents' unforgivable susceptibility to a report made by a charismatic sociopath--a susceptibility encouraged by the Department of Justice's instructions to to its gun-wielding policemen that they collect money by "going after Medicare fraud"--then filing a Bivens action might be exactly what I need to do.
     "Courts assume that Bivens litigation is [nevertheless] considered a waste of time for all concerned:  the plaintiffs, the defendants, and the judiciary," the article says.  But, in fact, it shows through a painstaking assembly of cases filed with United States courts, that Bivens cases are successful far more often than I have been led to believe.
     The LSU Medical and Public Health Law Site explains, in a 4/19/2009 post:
     Absolute immunity is granted to judges, prosecutors, legislators, and the President, so long as they are acting within the scope of their duties.  Qualified immunity applies to federal officials and agents who perform discretionary functions, but may be overcome by a showing that their conduct violated a constitutional right. 
     It may be that the government's agents are not immune from a lawsuit, after all, if it turns out that they had so little cause for the raid on my clinic that they violated my rights.  Until their top-secret affidavits are unsealed, though, I can only guess how they may try to explain their motives, or justify their pillage and robbery.

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