Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971)

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971)

403 U.S. 388

On November 26, 1965, six agents of the Federal Bureau of Narcotics, acting under color of federal authority, made a warrantless entry of Webster Bivens’s apartment, searched the apartment, and arrested him on narcotics charges. Bivens alleged that all of these actions were done without probable cause and brought suit in federal district court to recover $15,000 in damages from the agents. The district court dismissed his complaint on the ground, inter alia, that it failed to state a federal cause of action. The court of appeals affirmed, and the Supreme Court granted certiorari. In a six-to-three decision, the Court reversed and held that a violation of the Fourth Amendment by federal agents acting under color of federal authority gives rise to a cause for action of damages. In his dissent, Chief Justice Burger linked his objections to what he termed a judicially created “remedy not provided for by the Constitution nor enacted by Congress” to his more general reservations against the exclusionary rule. His criticisms of the exclusionary rule and proposal for reform are included here.

Opinion of the Court: Brennan, Douglas, Marshall, Stewart, White.

Concurred in Judgment: Harlan.

Dissenting Opinions: Black; Blackmun; Burger.

MR. CHIEF JUSTICE BURGER, dissenting. …

For more than 55 years this Court has enforced a rule under which evidence of undoubted reliability and probative value has been suppressed and excluded from criminal cases whenever it was obtained in violation of the Fourth Amendment. . . . This rule was extended to the States in Mapp v. Ohio. . . . The rule has rested on a theory that suppression of evidence in these circumstances was imperative to deter law enforcement authorities from using improper methods to obtain evidence.

The deterrence theory underlying the suppression doctrine, or exclusionary rule, has a certain appeal in spite of the high price society pays for such a drastic remedy….The plurality opinion in Irvine v. California (1954), catalogued the doctrine’s defects: “Rejection of the evidence does nothing to punish the wrong-doing official, while it may, and likely will, release the wrongdoing defendant. It deprives society of its remedy against one lawbreaker because he has been pursued by another. It protects one against whom incriminating evidence is discovered, but does nothing to protect innocent persons who are the victims of illegal but fruitless searches.” . . .

The exclusionary rule has also been justified on the theory that the relationship between the Self-Incrimination Clause of the ‘Fifth Amendment and the Fourth Amendment requires the suppression of evidence seized in violation of the latter. . . .

Even ignoring, however, the decisions of this Court that have held that the Fifth Amendment applies only to “testimonial” disclosures, . . . it seems clear that the Self-Incrimination Clause

does not protect a person from the seizure of evidence that is incriminating. It protects a person only from being the conduit by which the police acquire evidence. Mr. Justice Holmes once put it succinctly, “A party is privileged from producing the evidence but not from its production.” Johnson v. United States, (1913). . . .

This evidentiary rule is unique to American jurisprudence. Although the English and Canadian legal systems are highly regarded, neither has adopted our rule. . . .

I do not question the need for some remedy to give meaning and teeth to the constitutional guarantees against unlawful conduct by government officials. Without some effective sanction, these protections would constitute little more than rhetoric. Beyond doubt the conduct of some officials requires sanctions as cases like Irvine indicate. But the hope that this objective could be accomplished by the exclusion of reliable evidence from criminal trials was hardly more than a wistful dream. Although I would hesitate to abandon it until some meaningful substitute is developed, the history of the suppression doctrine demonstrates that it is both conceptually sterile and practically ineffective in accomplishing its stated objective. This is illustrated by the paradox that an unlawful act against a totally innocent person—such as petitioner claims to be—has been left without an effective remedy, and hence the Court finds it necessary now—55 years later—to construct a remedy of its own.

Some clear demonstration of the benefits and effectiveness of the exclusionary rule is required to justify it in view of the high price it extracts from society—the release of countless guilty criminals. But there is no empirical evidence to support the claim that the rule actually deters illegal conduct of law enforcement officials.

Although unfortunately ineffective, the exclusionary rule has increasingly been characterized by a single, monolithic, and drastic judicial response to all official violations of legal norms. Inadvertent errors of judgment that do not work any grave injustice will inevitably occur under the pressure of police work. These honest mistakes have been treated in the same way as deliberate and flagrant . . . violations of the Fourth Amendment. . . .

Freeing either a tiger or a mouse in a schoolroom is an illegal act, but no rational person would suggest that these two acts should be punished in the same way. From time to time judges have occasion to pass on regulations governing police procedures. I wonder what would be the judicial response to a police order authorizing “shoot to kill” with respect to every fugitive. It is easy to predict our collective wrath and outrage. We, in common with all rational minds, would say that the police response must relate to the gravity and need; that a “shoot” order might conceivably be tolerable to prevent the escape of a convicted killer but surely not for a car thief, a pickpocket or a shoplifter.

I submit that society has at least as much right to expect rationally graded responses from judges in place of the universal “capital punishment” we inflict on all evidence when police error is shown in its acquisition. . . .

In characterizing the suppression doctrine as an anomalous and ineffective mechanism with which to regulate law enforcement, I intend no reflection on the motivation of those members of this Court who hoped it would be a means of enforcing the Fourth Amendment. Judges cannot be faulted for being offended by arrests, searches, and seizures that violate the Bill of Rights or statutes intended to regulate public officials. But we can and should be faulted for clinging to an unworkable and irrational concept of law. My criticism is that we have taken so long to find better ways to accomplish these desired objectives. And there are better ways. . . .

Reasonable and effective substitutes can be formulated if Congress would take the lead, as it

did for example in 1946 in the Federal Tort Claims Act. I see no insuperable obstacle to the elimination of the suppression doctrine if Congress would provide some meaningful and effective remedy against unlawful conduct by government officials. . . .

A simple structure would suffice. For example, Congress could enact a statute along the following lines:

(a) a waiver of sovereign immunity as to the illegal acts of law enforcement officials committed in the performance of assigned duties;

(b) the creation of a cause of action for damages sustained by any person aggrieved by conduct of governmental agents in violation of the Fourth Amendment or statutes regulating official conduct;

(c) the creation of a tribunal, quasi-judicial in nature or perhaps patterned after the United States Court of Claims, to adjudicate all claims under the statute;

(d) a provision that this statutory remedy is in lieu of the exclusion of evidence secured for use in criminal cases in violation of the Fourth Amendment; and

(e) a provision directing that no evidence, otherwise admissible, shall be excluded from any criminal proceeding because of violation of the Fourth Amendment. . . .

In a country that prides itself on innovation, inventive genius, and willingness to experiment, it is a paradox that we should cling for more than a half century to a legal mechanism that was poorly designed and never really worked. I can only hope now that the Congress will manifest a willingness to view realistically the hard evidence of the half-century history of the suppression doctrine revealing thousands of cases in which the criminal was set free because the constable blundered and virtually no evidence that innocent victims of police error—such as petitioner claims to be—have been afforded meaningful redress.