The Supreme Court created a private damages action against federal officials
for constitutional torts (civil rights violations), which are not covered by the
FTCA. In
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971), the Court held that the Fourth Amendment gives rise to a
right of action against federal law enforcement officials for damages from an
unlawful search and seizure. Since a
Bivens action is brought against a federal
official in the official’s personal capacity, it is not considered to be an action
against the United States and therefore is not barred by sovereign immunity.
Bivens is not a general tort law. The plaintiff seeking a damages remedy under
Bivens must first demonstrate that constitutional rights have been
violated.[Davis v. Passman, 442 U.S. 228 (1979)
]
Bivens suits have been acknowledged by the Court as having more of a
deterrence effect against federal officials from committing constitutional torts
than the FTCA. This is chiefly because a
Bivens suit is a personal suit against
the official, and punitive damages are recoverable. The government is
substituted for the defendant in FTCA cases, and the FTCA does not allow
punitive damages. Thus a
Bivens defendant is at risk of personal liability,
including punitive damages, while the government pays all damages in FTCA
cases. Procedurally, a plaintiff is entitled to a jury trial in a
Bivens action, but
not in a FTCA case.[
Carlson v. Green, 446 U.S. 14 (1980)
]
The main defense for a federal official in a
Bivens action is official immunity
from actions for damages. There are two types of official immunity available as
affirmative defenses: absolute and qualified.[
Butz v. Economou, 438 U.S. 478
(1978)] Absolute immunity is granted to judges, prosecutors, legislators, and
the President, so long as they are acting within the scope of their duties.
Qualified immunity applies to federal officials and agents who perform
discretionary functions, but may be overcome by a showing that their conduct
violated a constitutional right.[Harlow v. Fitzgerald, 457 U.S. 800 (1982)
]
Absolute and qualified immunity are discussed more fully below.
