WASHINGTON – The widely shared images of immigration enforcement agents using violence to carry out the Trump administration’s immigration crackdown put the spotlight on how difficult it is to take federal officers to court.
Decades of Supreme Court decisions have limited the ability to seek damages from a federal employee accused of violating someone’s constitutional rights.
Depending on the outcome of a case the court will hear Nov. 9, such suits could be blocked entirely.
The plaintiff in the $3 million suit against a federal prison nurse is Kekai Watanabe, who says he should have been hospitalized or seen a specialist after being attacked during a gang-related fight at a prison in Honolulu in 2021. Instead, he was given over-the-counter pain medication and told to “stop being a cry baby,” Watanabe alleges.
An X-ray taken months later showed that he had a fractured coccyx and that bone chips had migrated to surrounding soft-tissue areas. He did not receive further treatment before being released in 2024 and remains in tremendous pain today, according to his lawyers.
The lawsuit gives the 6-3 conservative court an opportunity to overturn what’s left of a controversial 1971 decision, Bivens v. Six Unknown Named Agents, that allowed people to sue federal officers for monetary damages.
Erwin Chemerinsky, dean of the law school and a professor of law at the University of California, Berkeley, said the case has taken on special significance amid calls to hold immigration agents and others accountable for actions like the fatal shootings of Renee Nicole Good and Alex Pretti in Minneapolis earlier this year.
“If Bivens is eliminated, then there’ll be literally no way to sue in federal court when a federal agent like ICE violates the Constitution,” he said.
The 1971 decision, however, is criticized by conservatives who think the then-liberal Supreme Court used it to grant rights that aren’t spelled out in the Constitution.
In recent years, the court has sought to limit the ability to sue federal employees, including barring lawsuits in cases that are “different in a meaningful way” from the details spelled out in Bivens or in the only two other cases in which the Supreme Court has allowed similar constitutional claims.
FILE PHOTO: A general view of the U.S. Supreme Court in Washington, D.C., U.S., June 18, 2026. REUTERS/Elizabeth Frantz/File Photo
An appeals court said Watanabe’s claim passes that test, ruling it is identical to a 1980 Supreme Court decision in which the high court said federal prison staff violated the Eighth Amendment’s ban on cruel and unusual punishment when they failed to respond appropriately to a prisoner’s fatal asthmatic attack.
The Justice Department, however, argues that the 1980 decision is now “obsolete” because of more recent Supreme Court rulings limiting its reach.
“This Court should say as much,” the Justice Department wrote in a filing.
More: How the Supreme Court made it hard to sue ICE agent in Renee Good case
Attorneys for the prison nurse argue that the justices should go further and also get rid of the 1971 Bivens decision that underpinned the 1980 ruling.
“Those cases are relics of the bygone days when federal courts thought it appropriate to create causes of action Congress had not authorized,” the nurse’s attorneys said in written arguments. “The Court has since rejected every stitch of Bivens’s reasoning.”
Lawyers for Watanabe counter that Congress effectively authorized such lawsuits when it passed legislation in 1996 that limited – but did not end – those claims.
But recent rulings suggest that many justices believe Congress must pass a bill explicitly creating a right to sue.
Rory Little, who teaches constitutional and criminal law at the University of California College of the Law, San Francisco, predicted that the court will either “overrule an old civil rights precedent” or “once again” say it doesn’t apply to the latest case.
The result, Little wrote, “seems pretty much preordained.”
This article originally appeared on USA TODAY: Supreme Court case could end lawsuits against federal agents like ICE
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