Support for the Enactment of a New York State Bivens Act

SUMMARY

The State Court of Superior Jurisdiction Committee, Rule of Law Task Force, Immigration and Nationality Law Committee, Council on Judicial Administration and the Civil Rights Committee issued a report in strong support of the proposed New York State Bivens Act, which would restore a damages remedy against federal officials who violate constitutional rights. While 42 U.S.C. § 1983 provides a cause of action against state and local officials, the Supreme Court’s recent decisions have sharply curtailed so-called Bivens actions against federal officers, creating what the letter describes as a significant accountability gap. Drawing on the historical foundations of the Fourth and Seventh Amendments—including landmark English cases such as Entick v. Carrington and Wilkes v. Wood—the report argues that civil damages actions against abusive officials were central to the Framers’ understanding of constitutional liberty. It contends that the Supreme Court has departed from this tradition, misunderstood the historical basis of constitutional tort remedies, and effectively left victims of federal misconduct without meaningful redress.

The report argues that the New York Bivens Act is both necessary and constitutional. It argues that the Act properly relies on the Westfall Act’s “constitutional tort” carveout and aligns liability standards for federal officers with those already applicable to state officers under Section 1983, thereby avoiding discrimination against the federal government or interference with federal functions. In light of recent allegations of federal misconduct and the limitations of existing remedies under the Federal Tort Claims Act, the Committees view state legislation as an urgent means of restoring civil accountability. Although it finds the bill well drafted, the Committees recommend one amendment to clarify that the Act applies as broadly as constitutionally permitted—protecting residents and non-residents alike and ensuring New York courts can exercise jurisdiction to the fullest extent allowed. The Committees strongly urge prompt enactment of the legislation. 

OUTCOME

Adopted as part of the FY 2027 NYS Budget

REPORT

REPORT ON LEGISLATION BY THE STATE COURTS OF SUPERIOR JURISDICTION COMMITTEE, COUNCIL ON JUDICIAL ADMINISTRATION, CIVIL RIGHTS COMMITTEE, IMMIGRATION & NATIONALITY COMMITTEE, AND RULE OF LAW TASK FORCE

SUPPORT FOR THE ENACTMENT OF A NEW YORK STATE BIVENS ACT

The New York City Bar Association, through its State Courts of Superior Jurisdiction Committee, Council on Judicial Administration, Civil Rights Committee, Immigration and Nationality Committee, and Rule of Law Task Force, writes to express its strong support for the New York State Bivens Act.[1] The Act restores the longstanding tradition that government agents who abuse their authority and violate the Constitution are liable in damages to the victims of their wrongdoing.

For state and local officials, this principle of civil redress is protected by 42 U.S.C. § 1983.  Section 1983 does not apply, however, to federal officers who abuse their powers. Instead, traditionally, a so-called Bivens[2] action, based on the view that the Constitution itself creates or preserves a right to civil redress, provided an equivalent claim against federal officers’ abuses. Regrettably, based on a misreading of history, the Supreme Court of the United States has all but overruled Bivens, leaving an enormous gap in our system of civil accountability.

Since the Supreme Court’s near-abandonment of Bivens, federal officials have faced functional impunity for many violations of the Constitution. By removing these traditional rights to sue, the Supreme Court has effectively eliminated the mechanisms through which individuals may seek redress for Constitutional violations by federal officers.

In light of the Supreme Court’s holdings that statutes are necessary to award remedies that have existed since before the United States was founded, the Bivens Act is a pressing necessity to restore New Yorkers’ right to redress when federal agents violate the law. Building on a longstanding proposal by Professor Akhil Amar,[3] similar bills have been enacted or are under consideration in a number of states.[4] The proposed text of the New York Bivens Act is particularly well-designed to survive federal judges’ scrutiny, focusing on equal treatment of state and federal officers when it comes to liability for unconstitutional abuses.

Our only suggested amendment is to ensure a broad applicability of the Act to the greatest extent that New York has the constitutional power to do so. The statute should make clear that it extends to everyone subject to New York’s jurisdiction, residents and visitors alike. At a time when federal officials in Washington have retreated from the principle that all government officials are subject to the rule of law, New York State has a rare opportunity to reaffirm that commitment and uphold the Constitution’s promise.

I. THE BIVENS ACT RESTORES THE LONG TRADITION OF CIVIL REDRESS FOR OFFICIAL MISCONDUCT

The Constitution and the Bill of Rights are founded on the longstanding common law tradition that government officers who act ultra vires—beyond the powers legitimately conferred upon them—are liable for the wrongs they commit just as a private person would be liable. Both the Fourth Amendment’s protection against unreasonable searches and seizures and the Seventh Amendment’s protection of trial by jury in civil cases were inspired by common law cases awarding damages against abusive government officials. Entick v. Carrington[5] and Wilkes v. Wood,[6] the “landmark”[7] cases that form the basis for the Fourth Amendment, were civil cases for trespass in which juries awarded enormous punitive damages against government officials acting pursuant to illegal administrative or general warrants.

The centrality of these tort claims for damages to the Framers’ conception of ordered liberty when the Framers drafted the Fourth Amendment is well-known. “As every American statesman, during our revolutionary and formative period as a nation, was undoubtedly familiar with this monument of English freedom, and considered it as the true and ultimate expression of constitutional law,” the Supreme Court long ago explained “it may be confidently asserted that its propositions were in the minds of those who framed the fourth amendment to the constitution.”[8]

Perhaps less well-known is the fact that these cases were also the foundation for the Seventh Amendment. Wilkes held that a jury could award damages “not only as a satisfaction to the injured person, but likewise as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself.”[9] The Supreme Court has noted that this holding about a jury’s power to award punitive damages came “[j]ust before the ratification of the Constitution.”[10] This power of the English civil jury to punish officials who acted lawlessly was thus fundamental to the Framers’ conception of liberty.

Indeed, even before the Bill of Rights, the Framers viewed laws immunizing officials from civil liability as repugnant to natural rights. John Marshall, later the Chief Justice of the United States and the author of Marbury v. Madison, stated at the Virginia Ratifying Convention that a law immunizing a “federal sheriff” from liability for invading a “poor man’s house” and “beat[ing] him” would be “void.”[11] Similarly, when the Declaration of Independence indicted King George “[f]or depriving us in many cases, of the benefits of Trial by Jury,” the reference was not only to criminal juries but also to the civil juries that could vindicate the right to recourse for official abuses.

II. THE SUPREME COURT’S DEPARTURE FROM THE FRAMERS’ VISION

Regrettably, the current Supreme Court has moved away from the Framers’ views on civil recourse against abusive officials. Principally, the Supreme Court has misunderstood Bivens as judicial legislation rather than as a recognition that Entick-style common law tort claims for official abuses arose under federal law rather than being purely creatures of state law to the extent that a state was willing to provide them.[12] Despite the sterling originalist credentials of civil redress for official abuses—it is hard to think of a weightier source of original meaning than Justice Marshall giving a speech at the ratifying convention—the Supreme Court has failed to recognize the right to “apply for redress” when the modern equivalent of the “federal sheriff” engages in abuses. Rather, the Court has seemed to put the Erie doctrine that there is no general federal common law[13] above Justice Marshall’s unequivocal statement that purporting to eliminate the victim’s right to “redress” would be “void.” As a result, the Supreme Court has abolished the same right to sue for damages that the Court once recognized as a “monument of English freedom” and “true and ultimate expression of constitutional law.”[14]

Deepening the blow, the Supreme Court has significantly limited the ability of state common law to fill the gap and the ability of juries to decide these cases and award punitive damages. For example, it has generally upheld the Westfall Act, a statute that converts most common law claims against federal officials into Federal Tort Claims Act claims against the United States. 28 U.S.C. § 2679(b)(1). The Federal Tort Claims Act, however, does not allow trial by jury or punitive damages—precisely the remedies in cases like Entick and Wilkes—and in many cases, does not waive the United States’ sovereign immunity, so there may be no remedy at all. Thus, where the Westfall Act applies, far from providing “Equal Justice Under Law,” as the Supreme Court building proclaims, there is one law for private citizens who commit torts and an entirely different one for federal officers who engage in wrongdoing under color of their offices.

Professor Amar’s proposal of Converse-1983 statutes relies in large part on the Westfall Act’s “constitutional tort” carveout. This provision states that the elimination of direct suits against officers does not apply to a civil action “which is brought for a violation of the Constitution of the United States.” 28 U.S.C. § 2679(b)(2). Historically, this provision was understood as a recognition of Bivens claims.[15] By its terms, however, it is not limited to Bivens claims but rather applies to any civil claim “brought for a violation of the Constitution of the United States.”[16] Indeed, given Justice Marshall’s statement at the ratifying convention that a law abolishing civil recourse against the “federal sheriff” would be “void,” the Westfall Act’s constitutional tort carveout is necessary for the Act to be constitutional.

III. CURRENT EVENTS MAKE CODIFYING CIVIL REDRESS URGENT

The recent abuses in Minnesota—including federal agents killing protesters who posed no obvious threat, refusal to investigate the lawfulness of the agents’ actions, retaliatory arrests of people orally criticizing or videorecording agents’ activities in public, and grievous violations of the Fourth Amendment through invasions of private property without a judicial warrant—speak to the urgent need to restore civil redress and thus end impunity. Federal officials in the same manner as the types of executive-directed invasions of dissidents’ homes that led to Entick and Wilkes, recently have asserted that they may authorize themselves to enter homes by signing a purported “administrative warrant.”[17] Belying any claim that criminal prosecution—controlled by the executive and subject to the threat of a lawless pardon—suffices to hold federal officers accountable, federal agencies have engaged in systematic efforts to prevent investigation of federal officers’ killings of innocent persons.[18]

When the Constitution was written, there was a clear answer as to whether the victims of warrantless searches or lawless violence from government officials could seek civil redress: yes. The country had, after all, just declared its independence, “indicting” King George for shielding British soldiers “from punishment for any Murders which they should commit on the Inhabitants of these States,” as well as for interfering with trial by jury. The Boston Massacre had sparked the revolution. Entick and Wilkes were considered so fundamental that they formed the basis for at least two different amendments in the Bill of Rights. Even before the Bill of Rights, Justice Marshall had given his convention speech declaring that a law preventing a victim of official abuse from getting redress would be “void.” Yet today, legislation may be the only way that the Supreme Court might allow the restoration of such a fundamental right.

IV. THE BIVENS ACT IS CONSTITUTIONAL

As the Findings provision of the New York State Bivens Act observes, states have the authority to codify into statute what, until recently, was taken as implicit in the Constitutional text: that federal officials who violate constitutional rights must answer in damages for doing so. The Westfall Act’s carveout for “a civil action against an employee of the government which is brought for a violation of the constitution of the United States,” 28 U.S.C. § 2679(b)(2), by its plain text applies to a statute like the New York State Bivens Act.[19]

To be sure, cases under the Act are likely to be removed to federal court, either on federal question grounds based on the statute adopting a federal rule of decision or based on federal officer removal.[20] Questions of immunity under cases such as In re Neagle[21] or under federal statutes, as well as under the Bivens Act’s incorporation of Section 1983 qualified immunity principles, are thus likely to be made by federal judges unless the defendant opts to keep the case in state court.

But the Supreme Court has long held that state law has a role to play in suits against federal officers, holding well before Bivens that “[w]hen it comes to suits for damages for abuse of power, federal officials are usually governed by local law,” while “[f]ederal law, however, supplies the defense.”[22] Indeed, common law suits against individual officers for abuses of power are as old as the Republic, even if, because they predate the Court’s decision in Erie that common law is a matter of state law rather than a general common law, they do not specifically identify themselves as invoking state law.[23] While there is little doubt that the Department of Justice would mount a federal preemption argument against application of the New York Bivens Act, a robust federalism demands respect for states’ power to provide legal accountability for constitutional violations.

New York’s proposed Act, moreover, equalizes standards for state and federal officers rather than treating federal officers or federal activities less favorably and only applies when federal law already prohibits what the officer is doing. For example, without recounting the debate over the scope and existence of the judge-created qualified immunity doctrine under Section 1983, this bill provides exactly the same immunities that apply to a state officer sued under Section 1983 as would apply to a federal officer sued under this bill. Thus, it should not implicate intergovernmental immunity doctrines that turn on either the state attempting to directly regulate federal activities or the state discriminating against the federal government.[24] Instead, it simply does what state law has done since the beginning of the Republic, which is provide money damages and a jury trial where officers act beyond the powers lawfully delegated to them by the Constitution, in a neutral and non-discriminatory manner.

V. THE ACT SHOULD BE AMENDED TO ENSURE IT APPLIES AS BROADLY AS POSSIBLE

The City Bar believes that the bill is well-drafted. By simply making Section 1983 apply equally to federal officers, it avoids the constitutional issues of selective or discriminatory application that some proposed bills in other states have encountered. Rather, it focuses on restoring equal justice for those injured by official abuses. It equates the standard that applies to federal officers with the standard that applies to state officers, even codifying Section 1983 into state law in the event that its federal counterpart were to be repealed. It appropriately applies the federal constitutional standard as the substantive standard for liability rather than purporting to regulate federal officers beyond what the Constitution already requires of them. It applies categorically, rather than, say, only creating a cause of action against disfavored groups of federal officers while declining to do so against favored groups. It is, in short, a very well-designed bill.

Our one proposal for amendment is to clarify the broad application of the Act. It is essential that the Act protect citizens and non-citizens, New Yorkers and visitors alike. The Act should explicitly provide that it applies to the greatest extent permitted by the Constitutions of the United States and the State of New York so that there is no doubt that it protects to the greatest extent New York has authority to apply its laws. There should be no doubt that everyone within New York’s jurisdiction, regardless of residency or immigration status, is within the scope of the law and that there is no doubt that the legislature intends the broadest possible applicability. Similarly, New York has a relatively narrow “long-arm” statute, which may inhibit the ability of New York courts to exercise jurisdiction where a violation of the Constitution in New York is ordered by someone outside of New York.[25] The Bill should thus provide that New York courts may exercise jurisdiction under the Act to the greatest extent consistent with the Constitutions of the United States and the State of New York.

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We strongly support the proposed bill and urge that it be enacted as soon as possible.

State Courts of Superior Jurisdiction
Joseph Sanderson, Chair

Council on Judicial Administration
James Chou, Chair

Civil Rights Committee
Evan Henley, Chair

Immigration & Nationality Law Committee
Dorian E. Rojas, Co-Chair
Ludivine Van Der Heyden, Co-Chair

Rule of Law Task Force
Susan J. Kohlmann

February 2026