Judge Neil Gorsuch – Nominee to be Associate Justice of the Supreme Court: Part Five – Bivens and 1983

This post is one of a series exploring the background and jurisprudence of Judge Neil Gorsuch.

During an interview given over the weekend, Judge Harris Hartz of the Tenth Circuit Court of Appeals, a colleague of Judge Neil Gorsuch, described the latter as respecting “limits on [government] power.”[1]  However, in most cases challenging the deprivation of constitutional rights by the government, Gorsuch has found himself on the government’s side.

42 U.S.C. § 1983 allows individuals whose rights have been violated to sue responsible state officials.[2]  Similar to §1983, the Supreme Court’s decision in Bivens v. Six Unknown Named Agents allows individuals to sue federal actors who have violated their rights under color of law.[3]  Suits under §1983 and Bivens must be relatively circumscribed in scope.  Such actions can only be brought against individual actors, and not against the state in general.[4]  You cannot recover unless the state actor, in depriving your rights, have acted “under color of law.”[5]  In other words, the actions of rogue actors acting outside the law cannot be subject to Bivens or §1983 liability.  Additionally, such actions do not extend to the conduct of private actors contracting with the government.[6]  Even given the rules constraining Bivens and §1983 actions, Gorsuch’s record on such suits stands out as government-friendly.

In his twelve years on the Tenth Circuit, Gorsuch has voted to dismiss Bivens and §1983 cases over 60 times, while only voting to grant in a handful of cases.[7]  In many of these cases, Gorsuch declined to reach the merits of the suits, dismissing for failure to exhaust administrative remedies,[8] failure to plead sufficient facts or connection,[9] and sovereign immunity.[10]

In other cases, Gorsuch has dismissed suits under the doctrine of “qualified immunity.”  Qualified Immunity protects state actors who violate the law in depriving individuals of constitutional rights, provided that the law violated is not “clearly established.”[11]  However, the doctrine has rapidly expanded to protect state actors even in cases where their conduct is clearly unlawful, as long as there is no apposite case expressly forbidding it.[12]  For his part, Gorsuch has invoked qualified immunity broadly, protecting state and federal actors from suit over unlawful conduct.[13] 

In one notable example, Gorsuch found that an officer who fired a taser gun at an individual’s head (against training) was nonetheless entitled to qualified immunity.[14]  In dismissing the suit against him, Gorsuch noted that qualified immunity should “protect from civil liability for damages all officers except the plainly incompetent or those who knowingly violate the law. (internal quotation marks omitted).”[15]  His decision sparked separate opinions by both of his fellow panel members.  In her dissent, Judge Mary Briscoe noted that the application of qualified immunity was a mistake, noting that it was clearly established that “it is excessive to use a Taser to control a target without having any reason to believe that a lesser amount of force—or a verbal command—could not exact compliance.”[16]  In his own concurrence, Judge Scott Matheson noted there was “a constitutional violation in this case”,[17] while agreeing with Gorsuch on the dismissal of the case.

In another case, Judge Carlos Lucero wrote for a Tenth Circuit panel rejecting qualified immunity for police officers who unreasonably delayed a defendant’s arraignment.[18]  Gorsuch dissented from the decision, arguing that, while it is clearly established that the Fourth Amendment protects the right to a timely arraignment, the contours of such a right are not clearly established.[19]

Gorsuch has sided with §1983 plaintiffs in one notable case.  In Browder v. City of Albuquerque, Gorsuch held that an officer who collided with a car while speeding through a red light was not entitled to qualified immunity.[20]  Nevertheless, Gorsuch wrote a concurrence to his own opinion in the case, decrying the use of a §1983 action in the case, and arguing that state tort law would have adequately remedied the plaintiffs.[21]

Looking at Gorsuch’s Bivens and §1983 jurisprudence, it is difficult to see a commitment to check government power.  Rather, the record suggests that Gorsuch sees §1983 as limited to rare and extraordinary circumstances, and that most, if not all, constitutional violations are shielded by qualified immunity.  To be fair to Gorsuch, he is not the only judge to take an expansive view of qualified immunity.[22]  Nevertheless, given the media narrative on Gorsuch’s willingness to limit government power,[23] such a willingness does not extend to individuals whose rights have been wrongly deprived.

This post is one of a series exploring the background and jurisprudence of Judge Neil Gorsuch.


[1] Zoe Tillman, A Federal Judge Offers A Behind-the-Bench Look at Trump’s First Supreme Court Nominee, BuzzfeedNews, Mar. 19, 2017, https://www.buzzfeed.com/zoetillman/judge-offers-a-behind-the-bench-look-at-trumps-supreme?utm_term=.hxbaP7R7py#.lqk2MJ1Jvo (quoting Judge Harris Hartz).

[2] See 42 U.S.C. § 1983 (West) (“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…”).

[3] Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397, 91 S. Ct. 1999, 2005, 29 L. Ed. 2d 619 (1971).

[4] See, F.D.I.C. v. Meyer, 510 U.S. 471, 472, 114 S. Ct. 996, 999, 127 L. Ed. 2d 308 (1994) (declining to extend Bivens to cover federal agencies).

[5] See West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 2254–55, 101 L. Ed. 2d 40 (U.S. 1988) (“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.”).

[6] See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 63, 122 S. Ct. 515, 517, 151 L. Ed. 2d 456 (2001).

[7] Compare In re Estate of Bleck ex rel. Churchill, 643 F. App’x 754, 757 (10th Cir. 2016) (rejecting excessive force claim brought against police officer) with Riddle v. Hickenlooper, 742 F.3d 922, 930 (10th Cir. 2014) (holding that Colorado’s restrictions on campaign financing violates the Equal Protection Clause).

[8] See Farris v. Frazier, 599 F. App’x 851 (10th Cir. 2015), cert. dismissed, 136 S. Ct. 833, 193 L. Ed. 2d 703 (2016).

[9] See Jones v. Kansas, 572 F. App’x 648, 649 (10th Cir. 2014); Crabtree v. Oklahoma, 564 F. App’x 402, 404 (10th Cir. 2014).

[10] See Johnson v. Oklahoma Dep’t of Transp., 645 F. App’x 765, 768 (10th Cir. 2016).

[11] David French, Another Federal Court of Appeal Attacks the Second Amendment, Nat’l Rev., Mar. 20, 2017, http://www.nationalreview.com/article/445909/andrew-scott-case-second-amendment-attacked-eleventh-circuit-appeals-court.

[12] See id.

[13] See, e.g., Pippin v. Elbert Cty., Colorado, 604 F. App’x 636, 637 (10th Cir. 2015); Hernandez v. Story, 459 F. App’x 697, 698 (10th Cir. 2012); Aragon v. City of Albuquerque, 423 F. App’x 790, 794 (10th Cir. 2011).  

[14] Wilson v. City of Lafayette, 510 F. App’x 775, 780 (10th Cir. 2013).

[15] Id.

[16] Id. at 787 (Briscoe, J., concurring in part and and dissenting in part).

[17] Id. At 792. (Matheson, J., concurring).

[18] Webb v. Thompson, 643 F. App’x 718, 723-24 (10th Cir. 2016).

[19] See id. at 725 (Gorsuch, J., concurring in part and dissenting in part).

[20] See Browder v. City of Albuquerque, 787 F.3d 1076 (10th Cir. 2015).

[21] See id. At 1085 (Gorsuch, J., concurring) (“…there’s little reason to think state courts would fail to fulfill their oaths to see justice done in this case…”).

[22] See White v. Pauly, 580 U.S. __ (2017) (per curiam) (reversing the denial of qualified immunity to officers who entered a home without identifying themselves as police officers and killed the residents who attempted to defend themselves).

[23] See, e.g., Nina Totenberg, Trump’s Supreme Court Nominee Skeptical of Federal Agency Power, Nat’l Pub. Radio, Mar. 17, 2017, http://www.npr.org/2017/03/17/520310365/trumps-supreme-court-nominee-skeptical-of-federal-agency-power.  

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