Speaker 1: This is Bloomberg Law with June Brasso from Bloomberg Radio.
Speaker 1: Olympic gold medalists Simone Biles, Ali Raisman, and MICHAELA. Moroney
Speaker 1: are among the ninety women who are seeking more than
Speaker 1: one billion dollars from the FBI for failing to stop
Speaker 1: disgrace sports doctor Larry Nasser from sexually assaulting them when
Speaker 1: the agency first received allegations against him. Here's Biles testifying
Speaker 1: at a Senate Judiciary Committee hearing in September in reviewing
Speaker 1: the O I G S report, It truly feels like
Speaker 1: the FBI turned a blind eye to us and went
Speaker 1: out of its way to help protect U. S A
Speaker 1: G and U S O PC. A message needs to
Speaker 1: be sent. If you allow a predator to harm children,
Speaker 1: the consequences will be swift and severe. Enough is enough.
Speaker 1: I will close with one final thought. The scars of
Speaker 1: this horrific abuse continue to live with all of us.
Speaker 1: Joining me is Regina Calcatera of cal Katea Pollock, Regina.
Speaker 1: Did these gymnasts file a lawsuit here? It's not necessarily
Speaker 1: a lawsuit that was filed. What was significantly filed were
Speaker 1: claims against the federal government under the Federal Tort Claims Act,
Speaker 1: and if there is a claim to be brought against
Speaker 1: the federal government, you first have to actually file a
Speaker 1: claim and fill up documents and submitted to the subtle
Speaker 1: agency for them to consider what it is that you're
Speaker 1: asking for. So what the cases about is the gymnasts
Speaker 1: who were actually sexually assaulted by Larry Naster, the gymnast
Speaker 1: physician who was their position at M s U when
Speaker 1: they were training there and also for the Olympic team
Speaker 1: as well. He had been sexually molesting his students for
Speaker 1: the athletes for over thirty years. And in July, Stephen Penny,
Speaker 1: the head of Ewish Gymnastics, actually went to meet with
Speaker 1: the FBI in their Indianapolis office and advised the FBI
Speaker 1: that he has three gymnasts who want to come forward
Speaker 1: and explained to them what has been happening to them
Speaker 1: by Larry Nassa. They didn't follow up for a few
Speaker 1: months that they had a meeting in July and the
Speaker 1: first time that the FBI agents actually pick up the
Speaker 1: phone to speak to one of the gymnasts was on
Speaker 1: September two, several months later, and a conversation was had
Speaker 1: with one of the Gymnasts Mikayla Maroney, and it lasted
Speaker 1: for about three hours. At the end of the conversation,
Speaker 1: the agents abbot that is that at all. Then that
Speaker 1: day had a discussion with the US Attorney's office on
Speaker 1: what to do because they really didn't believe that they
Speaker 1: had jurisdiction over this particular matter. And UM was also
Speaker 1: concerned that the evidence may not rise to their ability
Speaker 1: to actually bring federal claims against NASA. So the U. S.
Speaker 1: Attorney for the Southern District of Indiana told them to
Speaker 1: actually transfer this over to the Lansing office of the
Speaker 1: FBI in Michigan, and that never happened. So eight months
Speaker 1: go by and the US Attorney and U. S. Gymnastics
Speaker 1: doesn't share anything. There's no follow up. So then what
Speaker 1: they did is they went to an other FBI office.
Speaker 1: They went to the Los Angeles office and share the
Speaker 1: same back pattern with them as well. There was an investigation,
Speaker 1: but the Los Angeles office also arrived at the same
Speaker 1: conclusion that the Indianapolis office has, is that they weren't
Speaker 1: so sure that they had enough evidence actually to bring
Speaker 1: a federal case against him based upon the sexual assault.
Speaker 1: And again they were supposed to advise the local authorities,
Speaker 1: because what both officers actually agreed to when they had
Speaker 1: these discussions, and this is what came out in the
Speaker 1: report that was issued by the Inspector General of the FBI,
Speaker 1: they both realized that this really should be dealt with
Speaker 1: by state or local authorities. So neither did the Los
Speaker 1: Angeles office or the Indianapolis office ever contact the attorney
Speaker 1: general in the state of Texas where this was happening
Speaker 1: by Nasser, or in the state of Michigan as well,
Speaker 1: or any local authorities after that. And it was not
Speaker 1: until the MSU campus police got a tip that a
Speaker 1: sixteen year old boy was assaulted by Nasser that they
Speaker 1: issued a subpoena and they went into NASA's house us
Speaker 1: to get some information. And then after that the local
Speaker 1: press picked it up. And when the local press picked
Speaker 1: it up, then the local FBI office and Lansing started
Speaker 1: taking a look at it. And that wasn't until about me.
Speaker 1: So it's confirmed in the Inspector General's report. There's no
Speaker 1: dispute that the FBI agents knew in twenty fifteen that
Speaker 1: Nasser was accused of assaulting gymnasts but failed to act,
Speaker 1: leaving him to continue the sexual assaults. So uster Napis
Speaker 1: actually went to the FBI in July and not until
Speaker 1: May the FBI actually get involved the local FBI. So
Speaker 1: between that time, some of the women that he was
Speaker 1: already assaulting he continued to assault, and also during that
Speaker 1: time he assaulted women that he didn't assault before. And
Speaker 1: there were seventy survivors of his sexual assault during that
Speaker 1: window of time that could have been prevented if the
Speaker 1: FBI actually stepped in, acted properly, documented it passed the
Speaker 1: investigation off to the local office and Lansing and did
Speaker 1: whatever they possibly could to mitigate anyone else being assaulted
Speaker 1: by him. Because at the time that the U S
Speaker 1: Gymnastics actually learned of this and went to the FBI,
Speaker 1: they fired him, but he also was working with the
Speaker 1: local high school, another local gymnastic team. He also worked
Speaker 1: at the Bella Caroli camp down in Texas, and so
Speaker 1: he was continuing some of his work there, so there
Speaker 1: was additional victims. Will pray basically that he was finding
Speaker 1: but if the FBI actually acted properly, they could have
Speaker 1: mitigated this and prevented this from happening. So within the
Speaker 1: past year you had a lot of the gymnastics, very
Speaker 1: high profiles like Shamone Biles and many others that testified
Speaker 1: before Congress and told them about what their experiences were
Speaker 1: and what the faults of the FBI was and the
Speaker 1: faults of the U S gymnastics team as well, and
Speaker 1: what they should have done, because there was also a
Speaker 1: lot of ethical lapses between the FBI and the U
Speaker 1: S Olympic team. But during this testimony and at a
Speaker 1: particular hearing christmer Pray, who's actually has U, the FBI
Speaker 1: took responsibility and it is extraordinary for any law enforcement
Speaker 1: governments executive to admit fault or admit liability, were let
Speaker 1: alone describe the conduct of an employee as a gross misconduct,
Speaker 1: and he apologized to them. So you have the statement
Speaker 1: of the federal law enforcement officer taken responsibility for the
Speaker 1: mouth seasons of his employees. And in the meantime, what
Speaker 1: it had transpired is the Inspector General of the FBI
Speaker 1: actually did his own investigation and he disclosed in this investigation,
Speaker 1: in this report that to the agents had lied, didn't
Speaker 1: properly follow up, didn't document, didn't try to mitigate it,
Speaker 1: and in fact that they had lied to the FBI
Speaker 1: as well, and the two agents are lying to those
Speaker 1: who are actually interviewing him, and one of the agents,
Speaker 1: agent Abbot, while he was meeting with Stephen Penny, who
Speaker 1: had a USA Gymnastics Stephen Penny had expressed to him
Speaker 1: that he was concerned that there's going to be a
Speaker 1: lot of blowback to him based upon the sexual assaults,
Speaker 1: and Abbott told him, don't worry about it. You know,
Speaker 1: I'll have the FBI say something positive about you, basically
Speaker 1: implying that that you came forward and you try to
Speaker 1: help out. And in the meantime, while they're having this discussion,
Speaker 1: Abbott and Penny are talking about a job to be
Speaker 1: the head of security for the US Olympic Committee, and
Speaker 1: then Penny is going to put in a good word
Speaker 1: for him. So then you have an Asian who actually
Speaker 1: has a different priority, and the priorities not to you know,
Speaker 1: bring light to the fact that these girls were sexually assaulted,
Speaker 1: but cover it up to protect the head of the
Speaker 1: U S Gymnastics. So this agent could possibly be the
Speaker 1: head of security for the Olympic Committee. So this is
Speaker 1: what was disclosed in the report. What I want to
Speaker 1: ask you before you go any further is since this
Speaker 1: is a claim filed under the Federal Tort Claims Act,
Speaker 1: what happens next. What happens next is once they file
Speaker 1: the claim, and in order to file the claim, they
Speaker 1: have to file it within you know, two years of
Speaker 1: when they were injured or or if there's some new
Speaker 1: information that came out. So recently the report was disclosed
Speaker 1: and the FBI said that they were not going to
Speaker 1: prosecute the two agents. But what they need to do
Speaker 1: is they basically need to file a form with the
Speaker 1: federal government stay what their damages are and which we
Speaker 1: know that they're claiming a billion dollars, but I think
Speaker 1: they divided it up amongst the different gymnuts for about
Speaker 1: fifty million each. They have to prove what their damages are,
Speaker 1: submit that documentation, and the FBI has a few options.
Speaker 1: The first option is that they could settle the case.
Speaker 1: You could sit down and have a discussion with them,
Speaker 1: which quite frankly, ethically immorality, that is what they should
Speaker 1: be doing because you already had the executive take responsibility.
Speaker 1: Or they could deny the claim. And if they deny
Speaker 1: the claim, then lossuits can actually be filed. But when
Speaker 1: those lassus of filed. They're actually filed before district court.
Speaker 1: But with all the evidence that the SI has compiled
Speaker 1: and the culpability that they have, and based upon what's
Speaker 1: in the Fiddle Torq Claims Act, is really in their
Speaker 1: best interests to sit down to have a discussion the
Speaker 1: billion dollar request. Do you think that that's sort of
Speaker 1: over the top. Well, what the Federal Tort Claims that
Speaker 1: requires is that the first time you put in the claim,
Speaker 1: whatever number you put there, you can't come back and
Speaker 1: increase that. Ever, So what they're trying to do is
Speaker 1: put in the maximum that they actually believe, but understanding
Speaker 1: that they're probably going to negotiate backwards because each individual
Speaker 1: claimant has to prove damages and those damages are based
Speaker 1: upon the state where they were assaulted and what those
Speaker 1: state laws are related to, um, you know, compensatory damages,
Speaker 1: because they won't get punitive damages under the Act, they
Speaker 1: won't get pre judgment interest. But if the state well
Speaker 1: where they were assaulted allows them to get compensatory damages,
Speaker 1: they could get that. So that's what they're going to
Speaker 1: be relying upon. So that fifty million dollar per athletes
Speaker 1: is pretty high. But they needed to do that just
Speaker 1: to insulate themselves as they're negotiating backwards. If this were
Speaker 1: a court case, it doesn't seem like there's even any
Speaker 1: discovery or investigation needed here. It's all been done. Yes,
Speaker 1: that is why morally and escally, the FBI should sit
Speaker 1: down and have a conversation and they should not continue
Speaker 1: having these young women being traumatized again. And there is
Speaker 1: several hundred million dollars that as setified every single year
Speaker 1: in Congress or the Judgment Act, and they pay out
Speaker 1: about over three hundred million dollars a year. There is
Speaker 1: already a pot of money that is set aside for
Speaker 1: judgments that are against the United States government. So this isn't,
Speaker 1: you know, an extraordinary claim that they brought. The number
Speaker 1: is high, but that number is gonna be little down
Speaker 1: who makes a decision about settling the case. It could
Speaker 1: either be the d o J with the FBI, and
Speaker 1: then if the case goes to court, it goes to
Speaker 1: a district court and it's a bench trial. So it's
Speaker 1: either going to be a federal district judge or it's
Speaker 1: going to be the FBI and d o J. Do
Speaker 1: you remember another case where you know, the FBI was
Speaker 1: sued for so much money, this seems like it's extraordinary.
Speaker 1: There have been other cases that have been brought in
Speaker 1: the past against them, not necessarily the FBI, but you know,
Speaker 1: other government agencies. But the one that was brought against
Speaker 1: the SBI, there was a hundred million dollars settlements. And
Speaker 1: this was a case where the FBI was you know,
Speaker 1: it was egregious government misconduct that were actually resulted in
Speaker 1: wrong full incarceration of several men who were falsely accused
Speaker 1: of participating in the Grizzly Gang slang. And that was
Speaker 1: a hundred million dollars As far as claims that came
Speaker 1: to add with this particular act, that's one of the
Speaker 1: highest recoveries. Let's just say the FBI decides it's not
Speaker 1: going to settle. Is there any kind of defense the
Speaker 1: FBI could interpose outside of the facts of the case.
Speaker 1: What the federal tort claim ax is it waves immunity
Speaker 1: in this particular situation. But what they can do is argue,
Speaker 1: you know, a series of things. One is, you know,
Speaker 1: this conduct that will allow how a planket to actually
Speaker 1: sue under this particular act, you know, has to be
Speaker 1: a government employee, which these two agents particularly you know, are,
Speaker 1: but they also would have had to perform the act
Speaker 1: that they performed within the scope of their duties, and
Speaker 1: and if they did, because they did, it was their
Speaker 1: duty to either do this or not do this. But
Speaker 1: so their omission of not passing on to the local
Speaker 1: office that these assaults were going on is an omission.
Speaker 1: It is within the scope of their duty. But there's
Speaker 1: an exception to that called the discretionary clause. So if
Speaker 1: these agents had discretion not to pass it on or
Speaker 1: not to bring you a federal action against them, that
Speaker 1: is what the FBI could argue, is that they had discretion,
Speaker 1: you know, not to prostitute federal claims, both in the
Speaker 1: Los Angeles office and in Indianapolis office because they didn't
Speaker 1: believe that the allegation rose to a federal case. That
Speaker 1: is the part that they may argue about discretion. But
Speaker 1: the fact that they live and they did not path
Speaker 1: do anything to mitigate or contact local authorities when they
Speaker 1: were told to do so is what the plaintiffs could
Speaker 1: argue back. But so there is that discretionary exception, and
Speaker 1: that exception is the most litigated defense by the federal
Speaker 1: government and used in these types of cases. As you mentioned,
Speaker 1: FBI Director Christopher Ray acknowledge that quote people at the
Speaker 1: FBI had their own chance to stop this monster back
Speaker 1: in tw and failed. And considering the publicity that this
Speaker 1: has gotten, and considering the fact that you have the
Speaker 1: guilty please by Nasser, you have the I G. S Report,
Speaker 1: it seems like it will be a case that's settled.
Speaker 1: I hope so. And it should be because they're beyond
Speaker 1: the beyond the discretionary exceptions, that is their only defense.
Speaker 1: And with all this evidence, like you said, that is
Speaker 1: out there, it's going to be very difficult for them
Speaker 1: to actually litigate this court this case in court. So
Speaker 1: it's best for them to settle and settle now. And
Speaker 1: the parties have to be flexible. You the plaints that
Speaker 1: will have to be flexible as far as you know
Speaker 1: what their damages are, because they still have to prove
Speaker 1: what their damages are. There are laws of scholarships, they're
Speaker 1: a laws of in some of them less less college.
Speaker 1: There's the trauma and emotional distress, UM. So they have
Speaker 1: to be flexible with coming down with that number. And
Speaker 1: I think if they sit down and UM, they could
Speaker 1: probably hash out a settlement within a few months for
Speaker 1: each one of them, because there's there's nothing else to defend. Yes,
Speaker 1: So let me ask you this. Suppose they can't reach
Speaker 1: a number, could they go to trial just on the
Speaker 1: damages portion? They would they If they can't reach the number,
Speaker 1: then they have to file a case after sixty days.
Speaker 1: When um within sixty days of what it is that
Speaker 1: there's some kind of an impass or the federal government
Speaker 1: denies what it is that they're asking, but they can
Speaker 1: go to court on damages. Thanks so much, Regina. That's
Speaker 1: Regina Calcatera of Calctera Pollock. Similar failures by federal law
Speaker 1: enforcers have led to major settlements in looting a hundred
Speaker 1: twenty seven point five million dollars for families of those
Speaker 1: killed or injured in twenty eighteen at Florida's Marjorie Stoneman
Speaker 1: Douglas High School. There, the FBI received a tip about
Speaker 1: five weeks before, but never forwarded the tip to the
Speaker 1: South Florida office. The Supreme Court has further weakened a
Speaker 1: doctrine meant to hold federal law enforcement and other officials
Speaker 1: accountable for violating constitutional rights. In a six to three decision,
Speaker 1: the justices would not allow a Washington State innkeepers excessive
Speaker 1: force claims against a US Border Patrol agent to go forward.
Speaker 1: The Court has consistently been narrowing what's referred to as
Speaker 1: a Bivens action, which allows citizens to sue federal officers
Speaker 1: who violate their constitutional rights for damages. In the majority opinion,
Speaker 1: Justice Clarence Thomas said the Court has declined eleven times
Speaker 1: to extend Bivens, but stopped short of overturning the fifty
Speaker 1: year precedent. The split was down ideological lines, and Justice
Speaker 1: Sonya Soto Mayor, joined by joice Is Stephen Bryan and
Speaker 1: Elena Kagan, said in dissent that the ruling closes the
Speaker 1: door to biven suits by many who will suffer serious
Speaker 1: constitutional violations at the hands of federal agents. Joining me
Speaker 1: is former federal prosecutor George Newhouse of Richard's Carrington. Tell
Speaker 1: us what happened here? You know the facts of the case,
Speaker 1: so a fascinating set of facts. There is a guy
Speaker 1: named Bouley who lives in Washington State, right on the
Speaker 1: US Canadian border, and he operates a little bit and
Speaker 1: Breakfast there that he famously called smugglers in and not
Speaker 1: surprisingly that got the attention of the Border patrol, which
Speaker 1: was watching him and working with him. Over the years.
Speaker 1: He in fact claimed to be cooperating with him, as
Speaker 1: some of his guests would be turned into border patrol,
Speaker 1: and on one occasion he notified the border patrol that
Speaker 1: he had a visitor coming. Border Patrol agent Egbert Eric
Speaker 1: Egbert responded pulled the guests out of the van as
Speaker 1: he pulled up, and Bully came out and let's just say,
Speaker 1: invited the agents to leave private property. According to his
Speaker 1: complaint filed in the federal court against the agent, the
Speaker 1: agent didn't like this and wound up throwing Boulet onto
Speaker 1: the ground, assaulted him, used excessive force, and then secondly,
Speaker 1: um when bull A complained to the Border Patrol about
Speaker 1: this behavior, which he had a right to do, the
Speaker 1: agent retaliated by sticking the I R s on him
Speaker 1: and seeing that other governmental actions occurred unfavorably, so he
Speaker 1: then was sued in federal court the agent individually and
Speaker 1: what's called it Bivens action, and that's a Supreme Court
Speaker 1: case where the the court said that I've done a
Speaker 1: federal agent in this case narcotics agents viole someone's Constitutional
Speaker 1: rights Fourth Amendments, specifically that they could sue the agent
Speaker 1: in federal court for damages. And that's what Egbert did. Um.
Speaker 1: It went to the Ninth Circuit. The Ninth Circuit upheld
Speaker 1: both of those causes of action. And remember, a cause
Speaker 1: of action is simply a right to sue someone in
Speaker 1: federal court. Um. The issue in the Supreme Court was, um,
Speaker 1: was the were the courts below right in implying i e.
Speaker 1: Allowing the plaintiff to proceed with a lawsuit for money damages?
Speaker 1: And the interesting thing is why this is a significant
Speaker 1: case is we have, as you know, a very conservative
Speaker 1: court which is strictly applying the words of the Constitution,
Speaker 1: and in the court is saying, look, it's up to Congress.
Speaker 1: It should be Congress's job to decide who has a
Speaker 1: valid claim to file a claim against the United States.
Speaker 1: Good example being a statute called the Federal Torque Claims Act,
Speaker 1: which allows people on over by mail trucks to sue
Speaker 1: the government for their damages. McCourt here said, Look, maybe
Speaker 1: Egbert did the wrong thing, but it's not up to
Speaker 1: the courts to decide who gets to follow the lawsuit.
Speaker 1: It's Congress's job, and Congress should weigh the costs and
Speaker 1: the benefit. And for that reason they threw the through
Speaker 1: the other plane of out of court thing. He had
Speaker 1: no claim in federal court against the agent. So it's
Speaker 1: an interesting constitutional issue, which is to say, win can
Speaker 1: accord imply a cause of action that is not expressly
Speaker 1: stated or delineated by some statute. Congress hasn't made this
Speaker 1: a specific of what we call right of action, and
Speaker 1: that's the issue. So George, when he filed this, his
Speaker 1: lawyers must have known that this was an uphill battle
Speaker 1: from the start, right because the Supreme Court has been
Speaker 1: limiting Bevan's actions. Yes, since nine one, the Supreme Court
Speaker 1: granted two other similar bivens suits, one involving an Eighth
Speaker 1: Amendment claim of by a prisoner um and another one
Speaker 1: on the Fifth amen a claim. But generally speaking, as
Speaker 1: the courts set forth, Justice Thomas in his opinion, you
Speaker 1: know eleven or twelve times where the Court has refused
Speaker 1: to extend bivens um. What's interesting is, of course, the
Speaker 1: plaintiffs said, this is a Bivins action. Bibbins involved a
Speaker 1: lawsuit against federal narcotics agents, the precursor to the d
Speaker 1: e A and for excessive force Fourth Amendment, and Bully said,
Speaker 1: I'm I'm bringing such a claim only differences against the
Speaker 1: Border Patrol, but still a federal law enforcement agent. So
Speaker 1: they felt, I think pretty confident. In the Ninth Circuit
Speaker 1: agreed this is a Bivns action. The Supreme Court in
Speaker 1: this case, however, said Nope, not a Byvin's action, and
Speaker 1: we decline to engage in judicial activism and create and
Speaker 1: implied cause of action for you, So that the first
Speaker 1: question the court dealt with is does this fall squarely
Speaker 1: within the parameters of Bibbons or is it an extension
Speaker 1: of Bibbons? And if it's an extension of Bivens, then
Speaker 1: the conclusion is a foregone certainty, which is you're out
Speaker 1: of court. So this was a six or three decision
Speaker 1: down audiological lines. In descent, Justice Sonia Sotomayor said, the
Speaker 1: court's ruling Contravenes precedent. Do you think that a Contravenes
Speaker 1: precedent should this case have been within the Bivens precedent. Well,
Speaker 1: it's far from me to criticize the United States Supreme Court,
Speaker 1: although I do from time to time. Her point, which
Speaker 1: is a good one, is on the first prong, which
Speaker 1: is is this a BIBBNS action. She said, yes, it is.
Speaker 1: She said, Okay, it's a different context because here it's
Speaker 1: a different agency, the Border Patrol, rather than federal and
Speaker 1: narcotics agents. But it's also a Fourth Amendment violation, allegedly
Speaker 1: for excessive force. And so she said, is squarely within
Speaker 1: the parameters the confines of bibbons um and what different
Speaker 1: doesn't make She asks, whether it's the Border Patrol ice,
Speaker 1: you know, d E. If it's a federal law enforcement agency,
Speaker 1: is should be all? And she of course pointed out
Speaker 1: there are eight three federal law enforcement agencies. It can't
Speaker 1: be that Bibbins is limited to only a federal narcotics agents.
Speaker 1: So she was right in pointing out that somewhat artificial distinction.
Speaker 1: But the second question, which is Court went to great
Speaker 1: length into Justice Corsage and his concurring opinion instead explicitly
Speaker 1: it's really time to overrule BIBBNS. Bibbons is not based
Speaker 1: upon words in the Constitution, a close or explicit reading
Speaker 1: would deny the Bibbins action, And he basically said or
Speaker 1: suggested in his concurring opinion that it's time to cut
Speaker 1: all the way instead of cutting back on bibbons, to
Speaker 1: cut it out, and this, of course is what the
Speaker 1: court is. There are people concerned about the abortion case
Speaker 1: that the Court is going to backtrack on established pre
Speaker 1: sent so they didn't do it here. So they didn't
Speaker 1: say bibbins is no longer the law. But what the
Speaker 1: Court clearly said is bibmins will not be extended, even
Speaker 1: to highly analogous situation as as this case presents. So
Speaker 1: some say that this decision makes it nearly impossible to
Speaker 1: hold federal police accountable for excessive force. That makes it
Speaker 1: so difficult and almost impossible. Well, it's a valid criticism.
Speaker 1: But on the other hand, as the court points out,
Speaker 1: almost all federal agencies have alternative remedies. Maybe those remedies
Speaker 1: are not as satisfactory to plaintiffs as filing a lawsuit,
Speaker 1: but you can file it an administrative claim as he did.
Speaker 1: He filed a complaint, and the court pointed out that
Speaker 1: that results in a lengthy investigation by the agency, which
Speaker 1: is charged under the law withholding their agents responsible. So
Speaker 1: you can file administrative claims against the agents and maybe
Speaker 1: or maybe not, you could follow lawsuit in state court.
Speaker 1: But the Supreme Court is e s making it going
Speaker 1: to make it very difficult in the future to file
Speaker 1: excessive civil rights claims, excessive fourth claims against federal officers
Speaker 1: in federal court that are not exactly parallel analogous to
Speaker 1: the Bibbins case. Does the Supreme Court's position here seem
Speaker 1: contrary to the movement in our country today, the movement
Speaker 1: to whole police more accountable, you know, the Black Lives
Speaker 1: Matter movement. Well, let's just say you're right. This decision
Speaker 1: is running a contrary direction. It is going to establish
Speaker 1: hurdles for lawsuits. Now, lawsuits are not the only way
Speaker 1: of holding these police officers accountable, but lawsuits in federal
Speaker 1: court on civil rights violations are going to be fewer
Speaker 1: and farther in between. But again, there are, as the
Speaker 1: Court points out, particularly when Congress. See Congress pass the
Speaker 1: Federal torqu Claim Act, and Congress is also responsible for
Speaker 1: regulating the fiddle agencies. So the Court is really saying,
Speaker 1: don't look to us if we need to have fatal
Speaker 1: agents more accountable. Well, there's a body called Congress, there's
Speaker 1: a legislature, and this is their job, and this is
Speaker 1: not the job of the courts to decide. We think
Speaker 1: the court. Thomas was quite clear, and Gorse agreed with
Speaker 1: him that the legislature is better suited to decide who
Speaker 1: gets to sue and win and for what violations. And
Speaker 1: we defer to the legislature. So if you need more enforcement,
Speaker 1: the court is saying, talk to your congressman. Do these cases,
Speaker 1: these Bivens actions usually split along ideological lines, not previously. No,
Speaker 1: I don't think so, and I'm not a constitutional scholar,
Speaker 1: of course, but I'm I imagine that most scholars now
Speaker 1: are looking at this court and saying, this is a
Speaker 1: new direction for a very conservative court. They have the votes,
Speaker 1: they have six to three, and they are going to
Speaker 1: look at and question established precedents. And Bibens now is
Speaker 1: per Justice Gorsage his criticism. I think in play it
Speaker 1: could well be that the next case will result in
Speaker 1: Bibbins being excised from the body of constitutional law. And again,
Speaker 1: remember this can be overruled changed by Congress at the
Speaker 1: Court's express instruction or invitation. The Court is saying, go
Speaker 1: to Congress. They're in a better position to know and
Speaker 1: to do the cost benefit analysis of deciding when to
Speaker 1: establish a judicial cause of action against a federal officer.
Speaker 1: And as far as the retaliation claim where he he
Speaker 1: sort of gratted the guy out to the FBI, the
Speaker 1: justice is all agreed about that. Yeah, they actually all
Speaker 1: agreed about that, the first Amendment claim and actually rated
Speaker 1: him out to what we say the Richard Nixon trick,
Speaker 1: which was he got the I R. S involved to
Speaker 1: examine his tax returns. Remember when Tricky Dick did that
Speaker 1: back in the seventies against to his political enemies. So
Speaker 1: that was a wrong meaning, that was not the right
Speaker 1: thing to do, assuming that the allegations are right. But
Speaker 1: the court was agreed that that doesn't fit neatly within
Speaker 1: the exception of Bivins. Bivens has only been applied to
Speaker 1: a fourth amenmic claim, fifth amenic claim, and an eighth
Speaker 1: ammic claim, and there is no case decision that would
Speaker 1: support a first amenmic claim, the first amount of claim
Speaker 1: being that the government can't retaliate against you when you
Speaker 1: make a complaint or a petition alleging government as conduct.
Speaker 1: So it seems that all the justices were in agreement
Speaker 1: on that. It was the deciding that he didn't have
Speaker 1: what looks and looked too many, including myself, to be
Speaker 1: a traditional Bivens claim under the Fourth Amendment when they
Speaker 1: denied that right. Thanks so much, George. That's former federal
Speaker 1: prosecutor George Newhouse of Richard's Carrington. And that's it for
Speaker 1: this edition of The Bloomberg Law Show. Remember you can
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Speaker 1: week at ten p m. Wall Street Time. I'm June
Speaker 1: Grosso and you're listening to Bloomberg