December 27, 2016

An amicus brief filed on behalf of a number of immigrant rights groups argues that the US Supreme Court should permit immigrants detained in the wake of 9/11 the right to sue top officials for civil rights violations.  In 2015, the Second Circuit ruled in favor of the detainees, but last October, the Court agreed to take on three petitions in the consolidated case: one from ex-Attorney General John Ashcroft and ex-FBI Director Robert Mueller; one from ex-Immigration and Naturalization Service Commissioner James Ziglar; and one from Dennis Hasty and James Sherman, respectively the former warden and associate warden of the Metropolitan Detention Center in Brooklyn, where the detainees were held.  The firm’s brief is among at least 10 amicus briefs filed in support of detainees.

The brief argues that the detainees can sue the federal officials under the Bivens doctrine.  That doctrine stems from the 1971 Bivens v. Six Unknown Named Agents decision in which the Supreme Court held that plaintiffs can sue individual federal officials for monetary damages when no other remedy is available to protect a constitutional right.

Denying a Bivens remedy, the brief says, “would effectively immunize tens of thousands of federal officers, and large swaths of federal law enforcement activity, from damages, no matter how egregious the officers’ conduct.”  The brief continues, it “would effectively immunize federal officers from damages liability even for torture, so long as the torture arises in a context involving national security or noncitizens.  This Court should reject that extreme position and affirm the critical importance of a Bivens remedy in deterring unconstitutional conduct and enforcing constitutional rights.”

News of the amicus brief was reported in Law360.

The brief was written by Partner Matthew E. Price and Associates Marina K. Jenkins, Tassity S. Johnson and Michael E. Stewart.

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