In June 2017, the Supreme Court decided Ziglar v. Abbasi and held that prisoners unlawfully detained post-9/11 did not have a Bivens claim against policy-level federal executive branch officials and likely had no Bivens claim against the wardens at the facility where they were detained. In doing so, the Court drastically altered the analysis for deciding when a Bivens claim is new and for determining when a new Bivens claim should be either allowed by a court or precluded under a “special factors” analysis. This change in the Bivens framework severely restricts the availability of factually novel Bivens claims, even those based on constitutional rights whose violation have generally been found to provide a cause of action. The net result is that in many areas, Bivens probably no longer serves a deterrence function that is critical in safeguarding constitutional rights. The most notable of these areas is federal prison litigation, where Bivens claims against individual officers are necessary for securing a number of rights guaranteed by the Eighth Amendment. Although prisoners subject to Eighth Amendment violations retain some remedies, without Bivens the remedial framework is incomplete and insufficient to fully assure constitutional rights. This remedy gap is the result of an unprecedented shift away from the language and logic of previous Bivens opinions. While the Court declined to adopt an even more radical retrenchment of Bivens, one that would restrict it to the facts of the first three cases adopting the remedy, there is a serious contention that its convoluted formulation of the rules reaches an identical substantive result. Therefore, the result of the Ziglar opinion is doubly troubling. Not only has the Court potentially left hundreds of thousands of prisoners with insufficient protection of their rights, but their means of doing so may lack the clarity necessary to create the appropriate response from other institutional actors.
