Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics
Decided on June 21, 1971; 403 US 388

 Man sues six federal agents for $15,000 each for conducting an unwarranted search and arrest


A. Issues Discussed: Criminal Justice (Drug), Fourth Amendment Search and Seizure, Warrantless Search, Warrantless Arrest, Probable Cause

B. Legal Question Presented:

Does a violation by federal agents of the Fourth Amendment right create a cause of action for financial redress?


A. Background:

Petitioner (Bivens) complained and alleged that respondents (six unnamed agents of the Federal Bureau of Narcotics), acting under claim of federal authority, entered his apartment and arrested him for alleged narcotic violations.  

The agents handcuffed petitioner in front of his wife and children, threatened to arrest the entire family, and searched the apartment. Subsequently, petitioner was taken to the federal courthouse in Brooklyn, where he was interrogated, booked, and subjected to a visual strip search.  Drug charges were filed but later dismissed by a US Commissioner.

Petitioner brought suit in federal district court. His complaint asserted that the arrest and search were effected without a warrant, and that unreasonable force was employed in making the arrest. Petitioner's complaint also alleged that the arrest was made without probable cause. He further claimed to have suffered great humiliation, embarrassment, and mental suffering as a result of the agents' unlawful conduct, and sought $15,000 damages from each of them.

The District Court dismissed the complaint on the ground that it failed to state a cause of action. The Court of Appeals affirmed on that basis. Petitioner sought review in the US Supreme Court and the high court granted certiorari.

B. Counsel of Record:
Opposing Side
Stephen A. Grant argued the cause and filed a brief for petitioner.
Jerome Feit argued the cause for respondents. With him on the brief were Erwin N. Griswold, William D. Ruckelshaus, A. Raymond Randolph, Jr., Robert V. Zener, and Reed Johnston, Jr.
C. The Arguments:
Opposing Side
"This Court should affirm the existence of a federal cause of action to remedy by damage a deprivation of rights secured by the Fourth Amendment to the United States Constitution when such deprivation is effected by persons acting under color of federal authority. It is the view of the American Civil Liberties Union that additional legislation is unnecessary for the maintenance of this action as a purely federal one. Rather, this Court should hold, as it has in the case of injunctive relief, that the right to the remedy of damages for deprivation of the constitutional right stems directly from the provisions of the Fourth Amendment...

The effectiveness of the exclusionary rule does much to implement the Fourth Amendment's commands. But that remedy cannot be realized unless a criminal prosecution is ultimately undertaken against the victim of a Fourth Amendment intrusion. Conversely, the exclusionary rule is no guarantee of the rights of those who are not prosecuted. And it is of small value to those persons subjected to intentionally outrageous intrusions on their privacy, even though evidence may ultimately be suppressed and criminal prosecutions terminated.

There are groups in our society who have been the victims of police harassment in such situations… Unless this Court can assure itself that there is no possibility that federal law enforcement officials will engage in violations of the Fourth Amendment for purposes of harassment or other motives unrelated to bona fide prosecution, there is a need for an effective remedy apart from the exclusionary sanction...

The final remedy available to redress severe infringements of the Fourth Amendment by federal officers is a common law damage action. It was the supposed availability of this remedy which prompted the court below to conclude that there was no need to allow damage actions in a federal forum. But constitutional rights should not be denied federal enforcement merely because the same conduct might give rise to common law liability. Moreover... suits such as these have so many dimensions which are uniquely federal in nature, that they are best resolved by federal tribunals.

Had the Fourth Amendment never been written, exclusive recourse to the traditional common law remedy of trespass actions might be understandable. But the Fourth Amendment was written and made an essential ingredient of our Constitution. It has long been used as a barrier to oppressive and overreaching conduct by federal law enforcement officials. The rights asserted herein are uniquely bottomed upon the spirit and language of that Amendment. When asserted against federal officers, there are compelling reasons to make a federal forum available for their vindication...

Additionally, if this Court does declare a purely federal cause of action and undertakes to define all of the appropriate standards and defenses, it would be undertaking a task substantially similar to that performed by it in many other contexts... there is no question that this Court has the power to declare the existence of a constitutional remedy arising from the Fourth Amendment.

No doctrine of official immunity supports the dismissal of the complaint in this action... A qualified privilege, involving good faith belief by the government official that his action is consistent with his office and the United States Constitution, is harmonious both with the principle of personal accountability and with the broadest justifiable freedom of action for government officers. Conversely, the absolute privilege does not balance personal responsibility against governmental freedom, but simply relegates the former to irrelevancy in the most important instances. The federal courts have been extremely reluctant to afford immunity without a detailed showing, by affidavit or otherwise, that the defendants' conduct was within the scope of his official duties. Requiring some demonstration of authority will hardly deter law enforcement officials from performing their legitimate responsibilities. And it will insure that redress will be available where as here authority has been unconstitutionally exceeded."

– ACLU brief in Bivens v. Six Unknown Names Agents of Federal Bureau of Narcotics

"The Fourth Amendment had its genesis in the successful common law actions in trespass prosecuted in England against government officers who offered the defense of justification by reason of a general warrant. The English courts disallowed the defense by holding the warrants void. These cases indicate that the purpose of the Fourth Amendment was to insure that similar defenses would be disallowed in state common law actions. The fact that no general federal question jurisdiction was granted to the lower federal courts confirms that the Fourth Amendment was intended to affect only the defense in suits under state common law, not to create a wholly new federal tort action.

Implementing constitutional rights by adopting affirmative remedies for their breach has traditionally been considered a legislative function. The only cases that might be viewed as instances where the Court has performed that task are cases where no other remedy for vindicating the constitutional right was available. The lack of any cases allowing a federal damage remedy under the Fourth Amendment is simply a manifestation of the general understanding of the Court's role in this regard and of the history and language of the Fourth Amendment, which indicate that state law governs the cause of action.

In the absence of implementing legislation, new remedies for enforcing constitutional rights should not be devised by the Court unless there is a compelling need for them. Decisions inferring rights of action from federal statutes require some showing of need as a prerequisite. When the Constitution is the only source for the new remedy, a significantly greater showing of necessity is required. Many different kinds of remedies for implementing the Constitution are available and choosing among them is a delicate task. Since the Court's range of choice is limited as compared with Congress', the decision to create a federal damage remedy should not be reached unless that remedy is essential for the protection of Fourth Amendment rights. The basis for judicial creation of the exclusionary rule under the Fourth Amendment serves as a guide in this respect.

Although state tort law may not effectively control police practices, a federal damage remedy would fare no better because the factors that render state law ineffective would apply equally to a federal remedy. The potential litigant's fear of antagonizing the police, together with unsympathetic juries, judgment proof defendants, and other factors, give the damage remedy little deterrent force. This is confirmed by experience under 42 U.S.C. 1983, which allows civil suits against state officers for violating the Fourth Amendment. Although some of these difficulties might be cured by establishing minimum liquidated damages and allowing suits directly against the government, these are matters for Congress rather than the courts. When there has been a significant gap in state law Congress has filled it, as indicated by the enactment of 18 U.S.C. (Supp. V) 2520, allowing recovery of liquidated damages for illegal wiretapping or electronic eavesdropping even when accomplished by nontrespassory means.

Generally, state law adequately compensates the victim of an unlawful search or seizure for his injuries. Thus, had petitioner sued under New York law, the common law actions of trespass and false imprisonment would have provided him with an adequate basis for seeking relief. Aside from actual physical injuries, the measure of damages for the deprivation of civil rights is uncertain and perhaps the only solution, aside from establishing minimum levels of recovery, is to give juries wide latitude in these matters. But this is essentially what state law does. There is no void for this Court to fill by creating a federal damage remedy. Studies indicate that suits for damages are both an ineffective and unwise method of controlling the police. Since the remedy petitioner seeks does not solve the problem he perceives, it is not necessary as a matter of constitutional law for this Court to fashion a new cause of action in damages for violations of the Fourth Amendment.

Although the district court had jurisdiction over the claim that the Fourth Amendment gives rise to a federal cause of action in damages, it properly dismissed the complaint on the merits and was not obligated to pass on any claims under state law. Defenses raising federal issues may not be anticipated and pendent jurisdiction does not require consideration of state claims when the federal cause of action is dismissed before trial."

– Respondent Brief in Bivens v. Six Unknown Names Agents of Federal Bureau of Narcotics

Opposing Side
Melvin L. Wulf filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.
No brief was filed as amicus curiae urging affirmance.

"We think that respondents' thesis rests upon an unduly restrictive view of the Fourth Amendment's protection against unreasonable searches and seizures by federal agents, a view that has consistently been rejected by this Court… The Fourth Amendment operates as a limitation upon the exercise of federal power regardless of whether the State in whose jurisdiction that power is exercised would prohibit or penalize the identical act if engaged in by a private citizen. It guarantees to citizens of the United States the absolute right to be free from unreasonable searches and seizures carried out by virtue of federal authority. And 'where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.'


First. Our cases have long since rejected the notion that the Fourth Amendment proscribes only such conduct as would, if engaged in by private persons, be condemned by state law... if the Fourth Amendment reached only to conduct impermissible under the law of the State, the Amendment would have had no application to the case. Yet this Court held the Fourth Amendment applicable and reversed petitioners' convictions as having been based upon evidence obtained through an unconstitutional search and seizure... In light of these cases, respondents' argument that the Fourth Amendment serves only as a limitation on federal defenses to a state law claim, and not as an independent limitation upon the exercise of federal power, must be rejected.

Second. The interests protected by state laws regulating trespass and the invasion of privacy, and those protected by the Fourth Amendment's guarantee against unreasonable searches and seizures, may be inconsistent or even hostile. Thus, we may bar the door against an unwelcome private intruder, or call the police if he persists in seeking entrance. The availability of such alternative means for the protection of privacy may lead the State to restrict imposition of liability for any consequent trespass. A private citizen, asserting no authority other than his own, will not normally be liable in trespass if he demands, and is granted, admission to another's house... The mere invocation of federal power by a federal law enforcement official will normally render futile any attempt to resist an unlawful entry or arrest by resort to the local police; and a claim of authority to enter is likely to unlock the door as well... Nor is it adequate to answer that state law may take into account the different status of one clothed with the authority of the Federal Government. For just as state law may not authorize federal agents to violate the Fourth Amendment, neither may state law undertake to limit the extent to which federal authority can be exercised. The inevitable consequence of this dual limitation on state power is that the federal question becomes not merely a possible defense to the state law action, but an independent claim both necessary and sufficient to make out the plaintiff's cause of action.  

Third. That damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials should hardly seem a surprising proposition. Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty. Of 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. But 'it is well settled that 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.' The present case involves no special factors counseling hesitation in the absence of affirmative action by Congress...

Finally, we cannot accept respondents' formulation of the question as whether the availability of money damages is necessary to enforce the Fourth Amendment. For we have here no explicit congressional declaration that persons injured by a federal officer's violation of the Fourth Amendment may not recover money damages from the agents, but must instead be remitted to another remedy, equally effective in the view of Congress. The question is merely whether petitioner, if he can demonstrate an injury consequent upon the violation by federal agents of his Fourth Amendment rights, is entitled to redress his injury through a particular remedial mechanism normally available in the federal courts. 'The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.' Marbury v. Madison (1803). Having concluded that petitioner's complaint states a cause of action under the Fourth Amendment, we hold that petitioner is entitled to recover money damages for any injuries he has suffered as a result of the agents' violation of the Amendment."

Held: the judgment is reversed and remanded.

Justice Vote: 6 Pro vs. 3 Con

  • Brennan, W. Pro (Wrote majority opinion)
  • Marshall, T. Pro (Joined majority opinion)
  • White, B. Pro (Joined majority opinion)
  • Stewart, P. Pro (Joined majority opinion)
  • Douglas, W. Pro (Joined majority opinion)
  • Harlan, J. Pro (Wrote concurring opinion)
  • Burger, W. Con (Wrote dissenting opinion)
  • Blackmun, H. Con (Joined dissenting opinion)
  • Black, H. Con (Joined dissenting opinion)

The ACLU filed as amicus urging reversal; the US Supreme Court reversed and remanded the ruling of the United States Court of Appeals for the Second Circuit in a 6-3 vote, giving the ACLU an apparent win.