CA5: Just because Bivens might become a dead letter doesn’t mean that the officers didn’t violate the 4A

Just because Bivens might become a dead letter doesn’t mean that the officers didn’t violate the Fourth Amendment. Villarreal v. City of Laredo, 2025 U.S. App. LEXIS 8241 (5th Cir. Apr. 8, 2025). My words, not the court’s but that’s the implication:

An example might illustrate the point. More than 50 years ago, six unknown named agents from the Federal Bureau of Narcotics stormed Webster Bivens’s home, “manacled” him “in front of his wife and children,” “threatened to arrest the entire family,” including his children, and then searched his home “from stem to stem.” Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971). The Supreme Court famously implied a cause of action for Bivens to sue the narcotics officers for damages. But in the subsequent five decades, it has become increasingly unclear whether anyone else can ever invoke the same remedy. See Egbert v. Boule, 596 U.S. 482 (2022). The potential unavailability of remedies to anyone not named Webster Bivens, of course, does not mean the rest of us have to wonder about our constitutional rights. All of us have equal rights under the Fourth Amendment. It is just that Webster Bivens has a cause of action for damages against federal officers—that is, an implied remedy—that others might not enjoy today. If federal officers violated the Fourth Amendment in 2024 and Congress created a cause of action to vindicate that wrong in 2025, the officers surely could not invoke qualified immunity by saying: “Yes, we knowingly violated the commands of the Constitution, but it was unclear to us at the time whether we could be sued for it.” Simply put, these officers undoubtedly “had fair notice that [their] conduct was unlawful.” Brosseau, 543 U.S. at 198.