Does this veteran have any recourse against the federal cops who assaulted him?

The three federal police officers who brutally assaulted Vietnam veteran José Oliva at a Veterans Administration hospital in El Paso five years ago later claimed he tried to enter the building “without clearing security.” But video of the incident shows that Oliva did nothing to justify the officers’ violence, which caused shoulder injuries requiring two surgeries and left him with “persistent ear and throat issues.”

In a case the Supreme Court is expected to consider for review next week, Oliva argues that he should be able to sue V.A. Officers Mario Nivar, Hector Barahona and Mario Garcia for violating his Fourth Amendment rights. At stake is the question of whether the Court should tolerate what 5th Circuit Judge Don Willett calls a “Constitution-free zone” where citizens can be “brutalized — even killed — by rogue federal officers” with “impunity.”

Oliva, then 70 years old, was on his way to a dental appointment in February 2016 when Nivar, who was manning the security station at the entrance to the V.A. hospital, asked him for ID. Oliva said he had put his ID in a plastic X-ray bin along with his other personal effects, a response that Nivar apparently viewed as insufficiently respectful.

“I got a problem with this man,” Nivar told his fellow officers, according to Oliva. “He’s got an attitude.”

Nivar walked around the conveyor belt, took out his handcuffs, and directed Oliva toward the metal detector. As Oliva walked through, Baharona, who had gestured for him to proceed, grabbed and yanked his arm, tearing his rotator cuff; Nivar choked Oliva from behind and slammed him to the floor; and Garcia joined the attack.

The cops handcuffed and detained Oliva, eventually charging him with disorderly conduct, a charge that was ultimately dismissed. A federal judge later concluded there was no evidence that Oliva had committed a crime or resisted arrest, which implies that Nivar and his colleagues violated the Fourth Amendment’s ban on “unreasonable” seizures.

In the 1971 case Bivens v. Six Unknown Named Federal Narcotics Agents, the Supreme Court said victims of such abuse have a right to sue the perpetrators for damages. Agents of the now-defunct Federal Bureau of Narcotics had entered Webster Bivens’ home without a warrant, “manacled petitioner in front of his wife and children,” “threatened to arrest the entire family,” “searched the apartment from stem to stern,” and taken him to a federal courthouse, where “he was interrogated, booked, and subjected to a visual strip search.”

Nearly half a century later, in the 2017 case Ziglar v. Abbasi, the Court cautioned against extending the remedy established by Bivens to “any new context,” which it called a “disfavored judicial activity.” At the same time, the Court said its decision “is not intended to cast doubt on the continued force, or even the necessity, of Bivens in the search-and-seizure context in which it arose.”

Consistent with that caveat, seven federal appeals courts have held that people can still sue federal law enforcement officers for search-and-seizure violations. But the U.S. Court of Appeals for the 5th Circuit, which last year overturned a ruling that allowed Oliva’s lawsuit to proceed, concluded that his complaint qualified as a “new context” because the facts are not exactly the same as those cited by Bivens.

Oliva, who is represented by Institute for Justice attorney Patrick Jaicomo, is asking the Supreme Court to resolve this circuit split by reaffirming that people can sue federal cops who violate their Fourth Amendment rights. Otherwise, Jaicomo warns, more than 18,000 federal law enforcement officers who work in the three states covered by the 5th Circuit (Texas, Louisiana, and Mississippi) will be able to “disregard the Fourth Amendment” without being held accountable.

Willett recently lamented that “innately unjust” situation, noting that federal law generally bars state tort claims by plaintiffs like Oliva. If Bivens claims also are “off the table,” he wondered, “do victims of unconstitutional conduct” by federal cops “have any judicial forum whatsoever?”

Jacob Sullum is a senior editor at Reason magazine.

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