Bring Back "Bivens"

The Steady State | by Joshua Stanton

In the coming days, we will learn more about whether justice demands the prosecution of the officer who shot and killed Renee Nicole Good in Minneapolis this week. But it’s already clear that whatever the facts show, this administration intends to shield him from legal accountability. Just hours after the shooting, Homeland Security Secretary Kristi Noem declared that the officer acted in self-defense and suggested that Good was engaged in “domestic terrorism.”

This response fits a dangerous pattern. The administration quashed an investigation into its Border Czar’s acceptance of a $50,000 payment from undercover FBI agents. One federal judge is considering criminal contempt sanctions over the removal of an immigrant contrary to his orders. Another is considering whether criminal charges against another unlawfully removed immigrant constitute vindictive prosecution. More broadly, President Trump has pardoned the January 6th insurrectionists, the drug-trafficking ex-President of Honduras, and several corrupt politicians who won his favor. If Attorney General Pam Bondi chooses not to prosecute the officer who killed Nicole Good, she can also shield him from state prosecution behind federal supremacy.

What most Americans may not know is that the law already shields the officer from civil liability. Renee Good’s family could sue the federal government for assault and battery under the Federal Tort Claims Act, or FTCA, but after years of litigation, the taxpayers would pay any damages a court ultimately awards. A civil suit in state court would be removed to federal court, with the same result. That result would frustrate one of our justice system’s most important incentives—the deterrence of wrongdoing. Worse yet, the FTCA offers no remedies for violations of constitutional rights, no punitive damages, no attorney fees, and no trial by jury.

Until recently, the officer might have faced civil liability under a so-called Bivens suit, named after a landmark 1971 Supreme Court decision, which for five decades allowed individuals to sue federal officials who violated their “clearly established” constitutional and statutory rights.

But the Court’s recent decisions have sharply limited Bivens because it was a judicial and not a legislative creation, calling its continued viability into question. At the same time, the Court has upheld a damages remedy against federal officials who violate religious freedom rights, because Congress enacted that remedy into law. Indeed, in limiting the judicially created Bivens remedy, the Court invited Congress to create a statutory one instead. The protection of our civil liberties compels Congress to accept the Court’s invitation now.

It is a reversal for me to be writing these words, having once led the branch in ICE’s legal office that defended its officers against Bivens suits. But this President’s reach for unchecked executive power requires him to both intimidate the ethical public servants who oppose his abuses and offer impunity to those who would enable them. Legislation to restore a Bivens remedy can withdraw one part of that impunity and give this President’s enablers a reason to hesitate.

I know from experience what a significant deterrent the risk of a lawsuit can be, even if the defendant knows that Justice Department lawyers will probably defend the suit. Having accepted an early retirement from government this year, I also know that those I left behind are being systematically bullied into looking the other way at conduct they know to be unlawful, abusive, or wasteful. A restored Bivens remedy should target only those officials who are personally involved in violating an individual’s rights and vindicate only those rights that are specifically enumerated in statute or that are (to use a term that courts have developed in detail) “clearly established.”

Skeptics may contend that such legislation may not pass in this Congress, just as they once predicted that a resolution to release the Epstein files would never pass. But members of Congress who are worried about reelection--or who have decided not to seek it--do not give blind obedience to unpopular presidents. And even in failing to restore accountability in this Congress, the President’s critics in Congress can put checks and balances on the 2026 ballot.

Joshua Stanton is an attorney who practices criminal defense and federal employment law in the District of Columbia and Virginia, and who recently retired after 29 years of military and civilian service. He is a member of The Steady State.

Founded in 2016, The Steady State is a nonprofit 501(c)(4) organization of more than 360 former senior national security professionals. Our membership includes former officials from the CIA, FBI, Department of State, Department of Defense, and Department of Homeland Security. Drawing on deep expertise across national security disciplines, including intelligence, diplomacy, military affairs, and law, we advocate for constitutional democracy, the rule of law, and the preservation of America’s national security institutions.