federal employees acting under federal
law.
7
However, “a victim of a
constitutional violation by federal officers
may (in certain circumstances) bring a suit
for money damages against the officers in
federal court,” even though no statute
exists granting such a right.
8
This type of
lawsuit is referred to as a Bivens action,
after the 1971 Supreme Court case of
Bivens v. Six Unknown Named Agents of
the Federal Bureau of Narcotics.
9
Similar
in purpose to section 1983, the purpose of
a Bivens action is to “deter federal officers
… from committing constitutional
violations.”
10
While the Bivens decision
addressed a violation of the Fourth
Amendment, the Supreme Court has also
“recognized an implied damages remedy
under the Due Process Clause of the Fifth
Amendment, … and the Cruel and
Unusual Punishment Clause of the Eighth
Amendment.”
11
However, the Supreme
Court has responded cautiously to
suggestions that Bivens be extended to
cover constitutional violations other than
those noted.
12
While section 1983 and
Bivens apply to different actors, the
analysis in either type of suit is the same,
with appellate courts generally
“incorporat[ing] section 1983 law into
Bivens suits.”
13
QUALIFIED IMMUNITY
When a law enforcement officer is
sued under either section 1983 or Bivens,
the officer is entitled to claim qualified
7
See, e.g., Robinson v. Overseas Military Sales
Corp., 21 F.3d 502, 510 (2d Cir. 1994)
8
Correctional Services Corporation v. Malesko,
534 U.S. 61, 66 (2001)
9
403 U.S. 388 (1971)
10
Malesko, 534 U.S. at 70 (emphasis added)
11
Id. at 67 [citing Davis v. Passman, 442 U.S. 228
(1979) and Carlson v. Green, 446 U.S. 14 (1980)]
12
Schweiker v. Chilicky, 487 U.S. 412, 421 (1988)
13
Ellis v. Blum, 643 F.2d 68, 84 (2d Cir. 1981)
immunity. Qualified immunity “is an
immunity from suit rather than a mere
defense to liability,”
14
and entitles an
officer “not to stand trial or face the other
burdens of litigation.”
15
The doctrine is
designed to protect “all but the plainly
incompetent or those who knowingly
violate the law.”
16
“The rationale behind
qualified immunity for police officers is
two-fold - to permit officers to perform
their duties without fear of constantly
defending themselves against insubstantial
claims for damages and to allow the public
to recover damages where officers
unreasonably invade or violate” a person’s
constitutional or federal legal rights.
17
Law enforcement officers are entitled to
qualified immunity where their actions do
not “violate clearly established statutory or
constitutional rights of which a reasonable
person would have known.”
18
Stated
differently, where law enforcement
officers reasonably, albeit mistakenly,
violate a person’s constitutional rights,
those “officials - like other officials who
act in ways they reasonably believe to be
lawful - should not be held personally
liable.”
19
In deciding whether to grant an
officer qualified immunity, courts use a
two-part analysis. This analysis “is
identical under either section 1983 or
Bivens.”
20
First, the court must determine
14
Mitchell v. Forsyth, 472 U.S. 511, 526
(1985)(emphasis in original)
15
Saucier v. Katz, 533 U.S. 194, 200 (2001)
16
Malley v. Briggs, 475 U.S. 335, 341 (1986)
17
Green v. City of Paterson, 971 F. Supp. 891, 901
(D.N.J. 1997)(citation and internal quotation marks
omitted); see also Lennon v. Miller, 66 F.3d 416,
424 (2d Cir. 1995)(Qualified immunity “serves to
protect police from liability and suit when they are
required to make on-the-spot judgments in tense
circumstances”)(citation omitted)
18
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)
19
Anderson v. Creighton, 483 U.S. 635, 641 (1987)
20
Wilson v. Layne, 526 U.S. 603, 609 (1999)