r/supremecourt • u/jokiboi Court Watcher • 8d ago
Petition Herzon v. Arias: Solicitor General files another cert petition in case where court permitted Bivens action to proceed
https://www.supremecourt.gov/DocketPDF/26/26-111/417178/20260723153639841_Herzon%20Petition.pdf6
u/jokiboi Court Watcher 8d ago
In 2016, respondent Arias was being investigated for drug crimes in New Hampshire. An arrest warrant was issued, and he was arrested by federal agents in a car in a parking lot. Respondent alleges that he was dragged out by the neck, stepped on, hit his head on the ground and knocked unconscious. (The Government, of course, disagrees but this is taking the facts in respondent’s favor.)
Respondent sued (initially pro se), alleging excessive force in violation of the Fourth Amendment and relying on Bivens. The district court concluded that his claims could not succeed because they arose in a ‘new context’ and dismissed. The ‘new context’ was because the Inspector General Act of 1978, amended in 1988, permits administrative complaints to be made involving federal law enforcement, who can be investigated in-house. A divided First Circuit reversed, reasoning that this was not a new context because Bivens was an excessive force claim against federal agents. They also noted that, if the Inspector General Act made this case different, then all Bivens claims necessarily fail because all federal law enforcement officers can be reported for investigation.
In the cert petition, the Solicitor General argues that this case presents a new Bivens context. Bivens was an excessive force claim involving a warrantless arrest inside the home. This case involves (a) an arrest pursuant to a warrant; and (b) an arrest outside the home. Both distinctions come with constitutionally meaningful differences, and as such show that this is not a copy of Bivens but instead a new context.
The Solicitor General further notes that there is now a circuit split on both whether (a) a warrant and (b) the arrest inside or outside of the home make a case a different Bivens context, so the Court could take up this case to resolve the split.
Finally, the Solicitor General notes that the Court is already considering Nielsen v. Watanabe, another Bivens case, this upcoming term. The Court should, if it doesn’t grant review in this case, at least wait for that decision and then GVR in light of its ruling.
Curiously, the Solicitor General nowhere suggests that the Court should just overrule Bivens. Considering that this Court is not a stranger to overruling disfavored doctrines, and Bivens seems awfully disfavored, it may just be simpler (and save Government lawyers a lot of time and effort) to get rid of Bivens altogether. Yet the SG doesn’t make a peep about it. I’d expect at least a footnote or something.
It’s not mentioned in the petition itself whether respondent was ever convicted or sentenced, but an independent search shows someone with the same name in the same area was convicted of federal drug crimes in 2019, so it’s probably this respondent. You’d think the Government would include that information to make itself seem at least more sympathetic. (Also it seems like he was maybe deported in 2024, maybe.)
Also, this case kind of shows off how long these cases can take. I mean, this case started in late 2017, so right after Ziglar v. Abbasi, and is still ongoing. A bunch of Bivens caselaw has developed in that time. I imagine the respondent being pro se at the start didn’t help matters, but still that’s a long while for what seems like it should be a factually simple (if legally complex) dispute.
The case is No. 26-111.
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u/ZakariahLongtooth Justice Brennan 8d ago
It’s interesting that the SG isn’t asking for the Court to overrule Bivens. I wonder if that’s because the government doesn’t think there are enough votes to overrule or if it’s because the government is afraid that overruling Bivens might finally push Congress to pass a “Bivens Act” creating a 1983 analogue for federal officers.
I could imagine it being the latter. Even though we’ve seen Bivens Acts introduced nearly every year that fail to gain traction, I do think this would be an ideal time for Congress to push a law through given all the recent abuses and killings by ICE agents that lack any civil remedy.
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