Police Abuse

Does This Elderly Veteran Have Any Recourse Against the Federal Cops Who Brutally Assaulted Him?

SCOTUS will soon decide whether to hear José Oliva’s argument that he should be allowed to sue V.A. officers for violating his Fourth Amendment rights.

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The three federal police officers who brutally assaulted Vietnam veteran José Oliva at a V.A. hospital in El Paso five years ago later claimed he tried to enter the building "without clearing security." But video of the incident shows that Oliva did nothing to justify the officers' violence, which caused shoulder injuries requiring two surgeries and left him with "persistent ear and throat issues."

In a case the Supreme Court is expected to consider for review next week, Oliva argues that he should be able to sue V.A. Officers Mario Nivar, Hector Barahona, and Mario Garcia for violating his Fourth Amendment rights. At stake is the question of whether the Court should tolerate what 5th Circuit Judge Don Willett calls a "Constitution-free zone" where citizens can be "brutalized—even killed—by rogue federal officers" with "impunity."

Oliva, then 70 years old, was on his way to a dental appointment in February 2016 when Nivar, who was manning the security station at the entrance to the V.A. hospital, asked him for ID. Oliva said he had put his ID in a plastic X-ray bin along with his other personal effects, a response that Nivar apparently viewed as insufficiently respectful.

"I got a problem with this man," Nivar told his fellow officers, according to Oliva. "He's got an attitude."

Nivar walked around the conveyor belt, took out his handcuffs, and directed Oliva toward the metal detector. As Oliva walked through, Baharona, who had gestured for him to proceed, grabbed and yanked his arm, tearing his rotator cuff; Nivar choked Oliva from behind and slammed him to the floor; and Garcia joined the attack.

The cops handcuffed and detained Oliva, eventually charging him with disorderly conduct, a charge that was ultimately dismissed. A federal judge later concluded there was no evidence that Oliva had committed a crime or resisted arrest, which implies that Nivar and his colleagues violated the Fourth Amendment's ban on "unreasonable" seizures.

In the 1971 case Bivens v. Six Unknown Named Federal Narcotics Agents, the Supreme Court said victims of such abuse have a right to sue the perpetrators for damages. Agents of the now-defunct Federal Bureau of Narcotics had entered Webster Bivens' home without a warrant, "manacled petitioner in front of his wife and children," "threatened to arrest the entire family," "searched the apartment from stem to stern," and taken him to a federal courthouse, where "he was interrogated, booked, and subjected to a visual strip search."

Nearly half a century later, in the 2017 case Ziglar v. Abbasi, the Court cautioned against extending the remedy established by Bivens to "any new context," which it called a "disfavored judicial activity." At the same time, the Court said its decision "is not intended to cast doubt on the continued force, or even the necessity, of Bivens in the search-and-seizure context in which it arose."

Consistent with that caveat, seven federal appeals courts have held that people can still sue federal law enforcement officers for search-and-seizure violations. But the U.S. Court of Appeals for the 5th Circuit, which last year overturned a ruling that allowed Oliva's lawsuit to proceed, concluded that his complaint qualified as a "new context" because the facts are not exactly the same as those cited by Bivens.

Oliva, who is represented by Institute for Justice attorney Patrick Jaicomo, is asking the Supreme Court to resolve this circuit split by reaffirming that people can sue federal cops who violate their Fourth Amendment rights. Otherwise, Jaicomo warns, more than 18,000 federal law enforcement officers who work in the three states covered by the 5th Circuit (Texas, Louisiana, and Mississippi) will be able to "disregard the Fourth Amendment" without being held accountable.

Willett recently lamented that "innately unjust" situation, noting that federal law generally bars state tort claims by plaintiffs like Oliva. If Bivens claims also are "off the table," he wondered, "do victims of unconstitutional conduct" by federal cops "have any judicial forum whatsoever?"

© Copyright 2021 by Creators Syndicate Inc.

NEXT: Texas Lawmakers Push a Likely Unconstitutional Ban on Plant-Based Food Producers Labeling Their Products 'Meat,' 'Beef,' 'Pork'

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21 responses to “Does This Elderly Veteran Have Any Recourse Against the Federal Cops Who Brutally Assaulted Him?

  1. Thanks for this valuable information!! Really helpful. I will bookmark your blog. I am satisfied to seek out numerous useful information right here within the publish. Thanks for sharing.

  2. Thanks for this valuable information!! Really helpful. I will bookmark your blog. I am satisfied to seek out numerous useful information right here within the publish. Thanks for sharing.

  3. This poor example isn’t indicative of how most government bureaucracies work. That’s why my belief in government punishing lies is a reasonable position.

    1. Your belief in the government punishing lies is unreasonable because the government is the biggest liar.

    2. So it’s ‘Bob’ now? Did you get banned as ‘Rob’?

  4. Not a single employee at the VA has lost money during Covid.

    1. None that I know. Of course for FedGov employees and contractors, even a furlough is just free time off you get paid for later.

      1. if you are a GS

  5. …the Court cautioned against extending the remedy established by Bivens to “any new context,” which it called a “disfavored judicial activity.” At the same time, the Court said its decision “is not intended to cast doubt on the continued force, or even the necessity, of Bivens in the search-and-seizure context in which it arose.”

    Useless.

  6. The only thing likely to persuade the government to allow legal remedies is, unfortunately, private remedies. And they’re not particularly prudent.

  7. More than any Iraqi or Afghani, I hate the over-entitled bags of excrement at the VA.

  8. Cops need to learn that “failure to respect my authoriteh” is not an actual crime. Time for the SC to step up.

    1. This. And why are there metal detectors at VA hospitals anyway? It it that sensitive or a high threat environment?

      The federal government has become insane.

  9. Justice Thomas is dead set on overturning Bivens, as he mentioned again in a recent case about an Army cadet trying to sue West Point. However, he’s been unable to get enough Justices to sign on (Ginsburg and Scalia were interested.) Perhaps this case will at least limit it.

  10. “Does This Elderly Veteran Have Any Recourse Against the Federal Cops Who Brutally Assaulted Him?”

    No.

    Did I do it right? Can I be on the supreme court now?

  11. Notice that neither Sullum (nor anyone else at Reason) has yet to inquire and write about the still unnamed reportedly black Capitol Police Officer who shot and killed unarmed veteran Ashli Babbit on January 6 without any warning as she “tried to enter the building “without clearing security.””

    It appears that since Babbit was a Trump supporter, none of the TDS suffering Biden campaigners at Reason consider her death/murder (without any warning) by a Capital Police Officer worthy of an article.

    1. Babbit was a traitor. She took an oath to the constitution at least once, and then very blatantly violated that oath. The only people still crowing about her are traitor sympathizers.

      1. Oh bullshit. This is the kind of nonsensical crap that makes it very hard to believe you served. As what she did isn’t fucking treason. It was just protest activism that went over the line into criminal trespass and possibly vandalism.

        None of this people had the wherewithal to do shit to actually take over the government or take Congress prisoner. To say otherwise is absurd.

        If you want to be taken seriously, act accordingly.

      2. The ghost of Lysander Spooner chuckles.

  12. Taking a break from the unhinged rants about the ex-president sullum? How sweet. You need counseling.

  13. We need to nearly eliminate the VA. It should be limited to simply handing vets the account information for whatever individual retirement and health savings accounts that is decided that they should be due at discharge. Until this ideal is reached, a good first step is eliminating its police force and excessive and oppressive security theater.

    A.C.A.B.
    All
    Cops
    Are
    Bureaucrats

    “The test for whether one is living in a police state is that those who are charged with enforcing the law are allowed to break the laws with impunity.”
    ~ Jon Roland

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