As citizens of a nation founded on the rule of law, we depend upon law enforcement and prosecutors to protect us from harm and from those who infringe our liberty. In exchange for this protection, we permit these public servants to exercise authority and at times great power. Thankfully, and it should go without saying, most law enforcement authorities honor the public’s trust by serving with integrity and by adhering to the highest of ethical standards.
But what is one to do on those rare occasions when prosecutors and law enforcement agents exceed and abuse their considerable power and authority? Fortunately, victims of such overreaching have at least some opportunities for redress. And a recent decision out of the Southern District of New York reflects one such attempt.
The backdrop of the case sounds like an episode of Billions: federal prosecutors in Manhattan target a hedge fund owner and allegedly rely on false statements to obtain a search warrant so they can—after tipping the media—conduct a highly-public raid that causes a hedge fund’s collapse. But this actual legal drama continues to play out in New York, and as reported by Law360 and numerous others, the matter just took another interesting turn, as Judge William H. Pauley III allowed hedge fund owner David Ganek’s lawsuit against U.S. Attorney Preet Bharara and various federal prosecutors and FBI agents to continue.
Ganek’s lawsuit is known as a Bivens action. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court held that a victim of a Fourth Amendment violation by federal agents had a right to pursue damages from those agents despite any statute expressly conferring such a right. See 403 U.S. 388, 397 (1971). In so holding, the Court spoke directly to the government’s power and the attendant harm that such power can cause when abused:
Respondents seek to treat the relationship between a citizen and a federal agent unconstitutionally exercising his authority as no different from the relationship between two private citizens. In so doing, they ignore the fact that power, once granted, does not disappear like a magic gift when it is wrongfully used. An agent acting—albeit unconstitutionally—in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own. Id. at 391-92.
As such, when government abuse results in a clear violation of constitutional rights, the victims...
