Rethinking Sovereign Immunity after Bivens
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RETHINKING SOVEREIGN IMMUNITY
AFTER BIVENS
INTRODUcTION
In Bivens v. Six Unknown Named Agents of the Federal Bureau
of Narcotics,' the Supreme Court held that a federal agent who had
violated the command of the fourth amendment2 could be held liable
in damages3 despite the absence of a federal statute authorizing such a
remedy.4 The understated, almost casual tone of the opinions belies
the Court's bold and novel exercise of judicial power to create affirma-
tive remedies for vindicating constitutionally protected interestsY Be-
cause the Bivens Court looked to the Constitution and not to Congress
403 U.S. 388 (1971).
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated .... U.S. Const. amend. IV. Bivens
alleged that federal agents, acting without a warrant and without probable cause, entered his
apartment, manacled him, threatened his family, and arrested him. 403 U.S. at 3S9. lte sought
$15,000 damages from each agent. Id. at 390. The district court dismissed Bivens complaint for
failing to state a cause of action. Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 276 F. Supp. 12, 16 (E.D.N.Y. 1967), aff'd. 409 F.2d 718 (2d Cir. 1969). re% d, 403
U.S. 388 (1971).
3 403 U.S. at 389. This question had been reserved by the Supreme Court in Bell v. Hood.
327 U.S. 678, 684 (1946).
4 All three dissents in Bicens criticized the majority's holding as improper judicial usurpa-
tion of legislative powers. 403 U.S. at 411-12 (Burger, C. I., dissenting); id. at 427-28 (Black. J..
dissenting); id. at 430 (Blackmun, J., dissenting). None of the dissenting Justices sought to
distinguish the implied damage remedy from the practice of granting injunctive relief premised
directly on the Constitution. See Delinger, Of Rights and Remedies: The Constitution as a
Sword, 85 Harv. L. Rev. 1532, 1541 (1972). This silence is particularly surprising in the case of
Justice Black, whose language in Bell v. Hood suggested a far-reaching remedial power for the
invasion of federal rights: 'where legal rights have been invaded, and a federal statute provides
for a general right to sue for such invasion, federal courts may use any available remedy to make
good the wrong done. 327 U.S. 678, 684 (1964).
For scholarly analyses of the constitutional and jurisprudential origins of the Birens ap.
proach to the implication of damage remedies, see generally Hill. Constitutional Remedies. 69
Colum. L. Rev. 1109 (1969); Katz, The Jurisprudence of Remedies: Constitutional Legality and
the Law of Torts in Bell v. Hood, 117 U. Pa. L. Rev. 1 (1968), Monaghan, The Supreme Court,
1974 Term-Foreword: Constitutional Common Law, 89 Harv. L. Rev. 1 (1975).
5 Writing for the majority, Justice Brennan found that the proposition [t]hat damages may
be obtained for injuries upon a violation of the Fourth Amendment by federal officials should
hardly seem... surprising, 403 U.S. at 395, while he acknowledged that -[o]f course, the
Fourth Amendment does not in so many words provide for its enforcement by an award of
money damages for the consequences of its violation, id. at 396.
6 For critical analyses of Bicens, see Dellinger, supra note 4: Lehmann, Bircens and its
Progeny: The Scope of a Constitutional Cause of Action for Torts Committed by Government
Officials, 4 Hastings Const. L.Q. 531 (1977); Student Project, Constitutional Torts Ten Years
597
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Rethinking Sovereign Immunity after Bivens
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