In the 1971 landmark case, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics the Supreme Court announced that citizens had the right to sue individual government agents in Federal Court for violations of their Fourth Amendment rights. In Carlson v. Green the Supreme Court extended the rights granted under Bivens to sue Federal custodial agents for violation of the Eighth Amendment right protecting inmates from deliberate indifference to their medical needs.

This week the Supreme Court faced the question in Minnecci v, Pollard of whether to extend Bivens to allow inmates to sue employees of private prisons in Federal Court for violations of their Eighth Amendment rights against cruel and unusual punishment. The Court said, “no.”

Richard Lee Pollard, an inmate at a private Federal prison owned by the Wackenhut Corrections Corporation slipped on a cart left in a doorway to the prison’s butcher shop. He fell, breaking both elbows. He filed a Bivens action in Federal Court claiming that various prison officials acted in such a way as to aggravate his pain and cause him unneccessary embarrassment. The District Court dismissed Polard’s case. The Ninth Circuit reinstated his suit and the Supreme Court reversed.

The Court held that victims in Bivens and Carlson were not sufficiently protected from violations of the Fourth Amendment in the state courts but that adequate remedies existed in the state courts to sue the private employees of Wackenhut and other private correctional facilities for what are primarily torts resulting in injuries to prisoners. Therefore the Supreme Court refused to extend the rights under Bivens to the employees of private prisons.

Francisco Castaneda, a U. S. Immigration and Customs Enforcement (ICE) detainee had an irregular, raised lesion that measured roughly two centimeters square. on his penis Castaneda complained to medical personnel working for the Division of Immigration Health Services, at the San Diego Correctional Facility (SDCF)reporting that the lesion was growing in size and becoming more painful and that it frequently bled and emitted a discharge. Dr. Esther Hui, a civilian Public Health Service (PHS) employee, was the physician responsible for Castaneda’s medical care during his detention at SDCF. Commander Stephen Gonsalves, a commissioned PHS officer, was a Health Services Administrator at SDCF during the relevant period.

Castaneda developed a lump in his groin. Staff and outside specialists advised that a biopsy be performed to determine whether he had cancer. Hui and Gonsalves denied requests for a biopsy and other recommended procedures as “elective.” He was treated with ibuprofen and antibiotics and was given an additional ration of boxer shorts.

Finally after nearly a year of incarceration, the procedure was finally authorized. Instead of providing treatment ICE released Castaneda from custody. A week later, a biopsy confirmed Castaneda suffered from penile cancer. Castaneda’s penis was amputated and he began chemotherapy Tests confirmed that the cancer metastasized to his groin. Treatment was unsuccessful, and Castaneda died.

Prior to his death he filed a suit against Hui and Gonsalves. In the landmark 1971 Supreme Court decision,Bivens v. Six Unknown Fed. Narcotics Agents the Supreme Court ruled that individuals have the right to sue government agents for violations of their rights. In Bivens the Court found that a cause of action existed when government agents allegedly violated Biven’s Fourth Amendment rights.However 42 U.S.C. 233(a) states in pertinent part:

The remedy against the United States . . . for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions, . . . by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment, shall be exclusive of any other civil action . . . by reason of the same subject-matter against the officer or employee . . . whose act or omission gave rise to the claim.

The Supreme Court held that while Bivens v. Six Unknown Fed. Narcotics Agents might provide grounds for a cause of action the statute provides immunity for Public Health Service employees. However injured plaintiffs may still have a cause of action against the government under the Federal Tort Claims Act, but not against the individuals.

Probably as long as there has been a Fourth Amendment there has been a debate over whether to exclude evidence illegally seized in violation of the Fourth Amendment. The Supreme Court ruled in 1914 in Weeks v. United States that illegally seized evidence should be excluded at trial. But to this day conservatives claim that the evidence should be admissible. After all it may have been seized illegally but its still credible evidence. The problem with this theory is, if you don’t exclude the evidence what is to stop government agents from consistently violating the Fourth Amendment to get evidence against individuals and organizations.

The right responds to this by suggesting that people can sue those who violate their rights in what is called a Bivens suit. But there are two problems with Bivens suits. First, if you are convicted of a crime and sent to prison as a result of illegally seized evidence no amount of money can pay you back for the time lost. Second, even if you are not charged and convicted a Bivens suit as shown in the recent Fourth Circuit Court of Appeals case, Unus v. Kane et al is very difficult to win.

Unus v Kane et al involves a Muslim family living in the Eastern District of Virginia shortly after 9/11. Iqbal Unus, a U.S, citizen worked for the Islamic Institute of Islamic Thought and he had ties to several other Islamic organizations. David Kane, a special agent for ICE, working with Rita Katz, an expert on Islamic affairs wrote a 99 page affidavit as part of Operation Green Quest, which was a Federal effort to investigate domestic support of international terrorism, and presented it to a U. S. magistrate to search a number of places, one of which was the Unus residence to find evidence regarding support for terrorist organizations. The affidavit was based on the moving around of funds which may have gone to terrorist organizations. According to Kane’s affidavit a number of charities headquartered at 555 Grove Street in Herndon, Virginia moved large sums of money around but the government was unable to prove that any of it went to terrorist organizations. The most they could prove is that some of it ended up on the Isle of Man but they could not trace it beyond there. On this evidence the magistrate found probable cause to search twenty places including the Unus residence.

When the agents arrived at his home with the search warrant, Dr. Unus was not home but his wife and daughter were present. When the agents banged on the door his wife was afraid, seeing ununiformed individuals outside her house, at least one of whom had a gun. Thinking it was a home invasion robbery she went to get their daughter who called 911. The agents, seeing the mother run to the back of the house, broke the door down. They entered the house with guns drawn and they handcuffed both the mother and the daughter. They remained handcuffed for nearly four hours during most of the search of the residence. The Unuses are Muslim and they were allowed to say their afternoon prayers. But they were not allowed to do it outside the presence of men nor were they allowed to wear a head cover for the prayers and the agents insisted on taking their picture without the head cover.

Using the Federal Tort Claims Act (FTCA) they sued the agents and the government for assault and false imprisonment as well as on Bivens counts for violation of their First and Fourth amendment rights. Despite the plaintiffs filing several amended complaints the trial court dismissed or granted the agents and the government summary judgment dismissing the complaint.

Despite the fact that on appeal of a grant of summary judgment the appellate court reviews the evidence as it is most favorable to the plaintiffs, the Fourth Circuit Court of Appeals upheld the trial court actions. Under the FTCA the Federal Courts look to the state law to define the various torts. The Court found that the agent’s knocking down the door, the exhibition of the weapon, and the use of the handcuffs in response to the door not being opened by the Unuses. Aysha Unus running to the back of the house and Hanaa Unus being on the telephone was reasonable. Therefore the charges of assault and false imprisonment were without support. After all it was a “terrorism-related warrant.”

The court upheld the dismissal of the Bivens claims since under the FTCA one cannot claim a violation of the FTCA and another law simultaneously. In any case the Court found Agent Kane’s behavior appropriate in the drafting of the affidavit.

Perhaps one could justify the court’s failure to find any support for the claims on the grounds of the mass hysteria that followed 9/11 but here it is eight years later and an appellate court with plenty of time to contemplate the briefs and the argument still finds that the trial court properly granted summary judgment.