Bivens action vs § 1983 in the context of Constitutional tort

Question

The legal information institute has a definition of “constitutional tort” that says:

A constitutional tort is a violation of one’s constitutional rights by a government employee. The alleged constitutional violation creates a cause of action that is distinct from any otherwise available state tort remedy. “Constitutional tort” is a predominantly academic term originating in the aftermath of the Supreme Court’s decision in Monroe v. Pape (1961), which held that 42 U.S.C. § 1983 provides a separate federal remedy for individuals suing state or municipal government officers who have violated their constitutional rights. The term is also used in the context of Bivens actions, which are lawsuits under federal common law for constitutional violations committed by federal government employees. As with common law torts, the usual remedy for constitutional torts is monetary damages.

https://www.law.cornell.edu/wex/constitutional_tort

While I think the definition is comparing § 1983 with “Bivens actions.” Are there specific laws regarding Bivens? It's not clear to me why there is such a distinction. I have followed the obvious links. Can anyone supply further reading regarding the range of torts that might fall under Bivens?

I gather assault by the FBI would fall under Bivens. But my research would be for other non-violent torts.

Does Bivens require that racial discrimination be alleged? Would doing so (without having specific proof when filing) be an advantage? I am assuming a relevant racial difference exists to support an allegation.

Answer 1

It's not clear to me why there is such a distinction.

Simple answer: § 1983 is restricted to acts by agents of US States. Bivens was added by SCOTUS as a sort of parallel remedy for the roughly analogous deeds of US federal agents.

If you need some kind of external validation for this basic claim: https://uslawessentials.com/2014111what-are-the-differences-between-a-bivens-action-and-a-42-usc-1983/

Does Bivens require that racial discrimination be alleged?

No. It's been "extended" "in 1979 for gender discrimination and in 1980 for cruel and unusual punishment". (It's also been restricted to not apply to Guantanamo.)

Would doing so (without having specific proof when filing) be an advantage? I am assuming a relevant racial difference exists to support an allegation.

Separate question. But roughly: if the complaint is not based on anything remotely factual it is easily dismissed early on. For the rest you may want to read about (evidence) discovery.

Answer 2

Partial answer

Wikipedia's article on Bivens v. Six Unknown Named Agents says:

The Supreme Court, in an opinion by Justice Brennan, laid down a rule that it will infer a private right of action for monetary damages where no other federal remedy is provided for the vindication of a constitutional right, based on the principle that for every wrong, there is a remedy.

My interpretation of this is that § 1983 for some reason did not provide a remedy for Bivens' complaint.

Oddly enough, Wikipedia's page on 42 U.S.C. § 1983 is currently titled Ku Klux Klan Act. I'm not qualified to opine on how that relates to your question regarding race, but it seems relevant.

Answer 3

While I think the definition is comparing § 1983 with “Bivens actions.” Are there specific laws regarding Bivens? It's not clear to me why there is such a distinction. I have followed the obvious links. Can anyone supply further reading regarding the range of torts that might fall under Bivens?

42 U.S.C. § 1983 provides a remedy for a willful violation of a federal constitutional right under the color of state law (a term of art that includes state and local law and actions by state and local governmental officials purporting to act in their official capacity).

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), provided essentially the same relief against a federal official purporting to act in their official capacity (i.e. a violation of the federal constitution). It does not extent to claims not recognized under 42 U.S.C. § 1983, and is arguably narrower. It could also probably apply to a private person, or state or local official, purporting to act pursuant to federal law after being deputized to do so by a federal official with the authority to deputize someone to enforce federal law.

Neither a § 1983 claim nor a Bivens claim applies in the case of someone who has absolute immunity from civil liability (e.g. a prosecutor engaged in non-investigative duties like bringing a criminal prosecution, or a judge, or a member of the Congress carrying out legislative business).

Generally speaking, a Bivens claim is subject to the same qualified immunity defense as a § 1983 claim, so it requires that the specific named defendant violated a constitutional right clearly established by binding case law involving sufficiently similar facts, viewed in light of the totality of the circumstances giving rise to the claim.

A Bivens claim may include claims against someone who engaged in a willful conspiracy to violation a clearly established federal constitutional right, but does not impose vicarious liability upon the United States government merely because the United States government violated someone's federal constitutional rights.