I’ve written at some length in the past about judicial hostility to damages suits brought by victims of allegedly unlawful post-9/11 counterterrorism policies. I may have to rethink some of that analysis in light of this morning’s landmark ruling by the Second Circuit in Turkmen v. Hasty, the class action arising out of the post-September 11 roundup and detention of certain groups of immigrants in and around New York.
In a nutshell (given that the majority opinion runs to 109 pages), Judges Rosemary Pooler and Ronald Wesley (Clinton and George W. Bush appointees, respectively) hold that (1) Bivens provides a cause of action for damages for the plaintiffs’ Fourth Amendment strip-search, Fifth Amendment substantive due process, and Fifth Amendment equal protection claims (albeit not their free exercise claim); (2) the facts alleged in the complaint are sufficient to overcome Iqbal; and (3) five former federal officials, including Attorney General John Ashcroft, FBI Director Robert Mueller, INS Commissioner James Ziglar, MDC Warden Dennis Hasty, and Associate Warden James Sherman, are not entitled to qualified immunity on the plaintiffs’ policy-challenging allegations of punitive and discriminatory confinement and unreasonable strip searches.
As Judge Raggi describes in her 91-page dissent, the majority nevertheless narrows the class of plaintiffs to only (1) those non-citizens confined in the MDC’s most restrictive housing unit; and (2) for restrictive confinement after the defendants allegedly learned that the plaintiffs were being detained without individualized suspicion of their connection to terrorism. But it’s still by far the most plaintiff-friendly circuit ruling in a post-9/11 damages suit. In her words, “Today, our court becomes the first to hold that a Bivens action can be maintained against the nation’s two highest ranking law enforcement officials . . . for policies propounded to safeguard the nation in the immediate aftermath of the infamous al Qaeda terrorist attacks of September 11, 2001.”
There’s surely a lot more to say about the 200 pages of opinions in this case–and the analyses of Bivens and qualified immunity, in particular. For that reason, among others, I suspect this is not the last we’ll hear of it…