Supreme Court

Federal Cops Attacked a 70-Year-Old Vietnam Veteran and Then Avoided Accountability in Court

The Supreme Court declines to hear arguments in Oliva v. Nivar.

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In September 2020, the U.S. Court of Appeals for the 5th Circuit dismissed a federal civil rights lawsuit filed by José Oliva, an elderly Vietnam veteran who was beaten and left permanently injured by federal police at a Department of Veterans Affairs (V.A.) hospital in El Paso, Texas. According to Oliva, the V.A. cops targeted him for abuse after he failed to promptly show his ID, which was temporarily out of reach in a metal detector bin.

"I got a problem with this man," one of the officers reportedly said about Oliva's supposed lack of cooperation. "He's got an attitude." The same officer then placed the 70-year-old in a chokehold and slammed him to the ground, permanently injuring Oliva's shoulder.

Oliva's lawsuit alleged that the unprovoked attack violated his Fourth Amendment rights. But the 5th Circuit waved those constitutional concerns away, holding that U.S. Supreme Court case law effectively shielded the federal cops from facing any such civil accountability.

Today, Oliva received another undeserved injury, this time at the hands of the Supreme Court itself. In an unsigned order issued this morning, the Court declined to hear Oliva's appeal. The 5th Circuit's ruling in Oliva v. Nivar will remain in place.

Much of this regrettable legal saga is the direct fault of the Supreme Court. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971), the Court held that the federal drug cops who entered Webster Bivens' apartment without a warrant, rifled through his belongings, shackled him in front of his family, and later strip-searched him at the federal courthouse, could be sued for violating Bivens' Fourth Amendment rights. But as 5th Circuit Judge Don Willett protested in a recent opinion, the Supreme Court has since weakened its Bivens precedent to such an extent that "if you wear a federal badge, you can inflict excessive force on someone with little fear of liability."

The 2017 case of Ziglar v. Abbasi illustrates exactly how the Court undermined its previous holding. If a Bivens suit against an allegedly unlawful federal officer arises in "a new context," the Court said in Ziglar—meaning "the case is different in a meaningful way from previous Bivens cases decided by this Court"—then the presiding judge should look for any "special factors counseling hesitation." As soon as any such "special factor" is found (or cooked up), then the lawsuit must be dismissed.

Three years later, in Hernandez v. Mesa (2020), the Court doubled down on that approach. "If we have reason to pause before applying Bivens in a new context or to a new class of defendants," the Court said, "we reject the request." As the Court declared in Ziglar, "the Bivens remedy is now a 'disfavored' judicial activity."

José Oliva filed a Bivens claim against the V.A. cops who attacked him. But the 5th Circuit, taking its cues from Supreme Court, dismissed his suit as "a new context" because "this case differs from Bivens in several meaningful ways." For instance, the appeals court maintained, "the case arose in a government hospital, not a private home." Also, "the VA officers were manning a metal detector, not making a warrantless search for narcotics."

The end result of that SCOTUS-sanctioned legal quibbling: The V.A. cops who beat an elderly veteran got to avoid accountability in civil court.

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  1. The court has stared down that decisis and blinked.

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    3. Our SCOTUS IS AN ABSOLUTE JOKE FILLED WITH THE MOST PATHETIC HUMAN JOKES MASQUERADING AS FAIR AND IMPARTIAL “JUSTICES”. AT EVERY TURN THEY GIVE LAW ENFORCEMENT A BLANK CHECK TO ABUSE THE CITIZENRY. THESE JUSTICES, IN MANY INSTANCES ARE FORMER PROSECUTORS, SO WHY WOULD THEY EVER GIVE A DANG ABOUT THOSE LAW ENFORCEMENT ABUSES?

      YOU CAN’T GET AN HONEST RULING AGAINST THE SEX OFFENDER REGISTRY BECAUSE SAMUEL ALITO WAS EITHER A D.A. OR STATE A.G. WHEN ALASKA CREATED THEIR FIRST REGISTRY UPON WHICH THE DOES V. SMITH RULING IS BASED. ANY LAW A JUSTICE PUSHED FOR PASSGE PRIOR TO THEIR TIME BEING PUT ON THIS HIGH COURT SHOULD HAVE TO RECUSE THEMSELVES. YOU CAN’T EXPECT THEM TO EVER OVERTURN A LAW THEY HELPED GET PASSED AT SOME TIME IN THEIR PAST.

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  2. Congrats Biden fans! You got what you hoped for a truly narcissistic and dysfunctional nation of inner party, outer party, and proletariat.

    Guess which one you’re in?

    1. Federal agencies are functioning just fine. If courts limit qualified immunity, how will the ruling class be able to effectively deploy federal law enforcement to suppress their ideological opponents?

    2. Good point. If Biden hadn’t stolen the election none of this would have happened.

      1. Bai Dan doesn’t even know he’s president.

    3. So a court with majority of Republican appointees is still Biden’s fault?

      1. Everything is Biden’s fault. It’s the Trump side of the tard coin, the libtard side being Everything is Trump’s fault. This is the state of American political discourse today.

      2. If you had just said “how is this Biden’s fault” you’d of gotten away with it. Can’t help yourself can ya?

  3. Anybody up for a Rambo watch party?

    1. I am. That, or Robocop. The original Robocop, where Murphy gets sadistically blown to pieces: the same fate these fucking pigs should face. The new one pussied out big time. 😉

      1. The rebooted Robocop isn’t even Robocop. In the original Robocop, Murphy is functionally dead and can never expect to live anything resembling a normal life. He has almost no agency; he is a dead man in an iron cage. In the new Robocop he’s a badly injured man who’s live is saved by radical surgical intervention and mechanical augmentation. He still knows who and what he is, but he cannot live a normal life because he lacks 90% of his body.

  4. That is one of the briefest, substantive appellate opinions I’ve read in awhile. Money quotes before they deny expanding Bivens relief in this context:

    The VA police officers offered a very different version of the facts.
    Officers Nivar, Barahona, and Garcia submitted materially identical affidavits. They stated that Oliva “attempted to enter the [hospital] without first clearing security.” The officers further averred that Oliva did not clear security because he failed to show identification.
    Security cameras captured the altercation on video, so we consider “the facts in the light depicted by the videotape.” Scott v. Harris, 550 U.S. 372, 381 (2007). The video is inconsistent with Oliva’s account of the facts in certain respects. For example, the video shows that Oliva did not place “all” of his items in the inspection bin. He’s plainly holding something in his hand when he attempts to walk through the metal detector. Moreover, Officer Nivar approaches Oliva with a pair of handcuffs before Oliva attempts to walk through the metal detector. Thus, the video undermines (if not
    contradicts) Oliva’s statement that “[a]t no point before I was attacked, was I told that I was going to be arrested or detained.”

    Use of force is ugly. The videotape mentioned in the opinion would shed a lot of light on the officers’ conduct, not that it will help Mr. Oliva recover for excessive force in his FTCA claim

    1. So Oliva lied?

      1. Perhaps misremembered is a better way of putting it? I haven’t seen the video either.

        I’m not surprised if it turns out the officers did use excessive force on Mr. Oliva. Reading between the lines of the opinion, my guess is that’s what happened, but it still doesn’t entitle him to Bivens relief. Nor did it come from completely out of nowhere.

        I understand a VA patient, likely in pain before the asskicking, getting held up by some meatheads’ incompetence at the metal detector, and deciding to just walk through the motherfucker. We’re going to see more of this kind of behavior from our executive branch members, as the country continues to adopt a culture of corrupt incompetence mixed with impersonal violence.

        Didn’t we used to be better than this?

        1. We are better than this.

        2. Forget “reading between the lines” and your guess. See the video. It shows clearly what happened. The appellate opinion is disgraceful.

          1. Where’s the video? I missed seeing a link to it in Root’s writeup. (Not that I read it very closely.)

      2. Oliva didn’t lie. The cops just attacked him. For the video, enter on YouTube: Vietnam Vet Beaten.

        1. I looked at the video. Unfortunately, there is no sound. There is no way to tell if he gave the guards some shit before attempting to walk through the metal detector.

          Even if he did give them some shit, I’m not sure what I saw in the video was justified. Three 20-somethings on 1 seventy-something?

          1. From watching the video, I’m not sure the dispute was really about showing id or talking shit. Sound would help a lot to tell if the guards asked him to put the folded up newspaper (what it looks like to me) on the conveyor belt before going through the metal detector. It’s plainly visible in his right hand early in the video, but it looks like it’s transferred to his left hand before he heads to the metal detector. It looks like that’s what the officer on the other side of the metal detector grabs and raises to try and pull away from Oliva. Even if that’s the case, it certainly could have been handled better.

  5. pigs gotta pig.

  6. God damn I wish these judges could eat the kind of justice they serve out to others.

    1. when God judges them they will know what a total POS they are

  7. The brittle egos of those wannabe warrior cops were so threatened by the real deal old vet that they beat the old man. This case and QI in this case is atrocious.

    Yes, government offices are predictably dangerous for interaction with the government; but what about your own home, on your own private dirt road, and behind your own fence. Apparently, to impress some women annoyed with a driver of another car cops sneaked down that private road, over that fence in the dark of night and unidentified, and began to prowl around / break into his house. Then they sniped and killed one of the two Pauly brothers, not even the one from the car, through his own living room window. Those cops got QI, too.

    “Qualified Immunity: Justice Denied”

    “Moments later, Sam was dead from a bullet fired by state police who never announced themselves. Sam’s family tells the story, and Clark Neily explains how qualified immunity has prevented accountability for Sam’s murder.”

    https://www.cato.org/multimedia/cato-video/qualified-immunity-justice-denied

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

    “The only good bureaucrat is one with a pistol at his head. Put it in his hand and it’s good-bye to the Bill of Rights.” ~ H. L. Mencken

    1. Mencken is an obvious insurrectionist. His bones should be dug up and put on trial along with all those within 6 miles of the Capitol on Jan,.6th who voted for Trump.

  8. The government protects its own people, there is no need to pay attention
    https://www.mydresshut.com/

    1. then the government will fall sooner or late l

      1. when God judges them they will know what a total POS they are

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  10. That Hernandez v. Mesa decision was just 5-4, conservatives against progressives:
    https://en.wikipedia.org/wiki/Hernandez_v._Mesa#Majority_opinion_2

  11. If there was every a reason to revoke “Qualified Immunity,” this would be one of them. We should respect our LE and the very difficult and sometimes dangerous job they do, but no one should be immune from accountability. Currently there is bipartisan support in Congress to ban qualified immunity from LE, which I fully support. Courts will just have the hard job of determining if rights have been trampled or if excessive force is used. That should be done on a case-by-case basis.

    1. This case isn’t about qualified immunity. Qualified immunity only applies in Section 1983 cases, which only authorize lawsuits against state and municipal employees. These were federal employees and therefore cannot be sued under Section 1983.

      The federal government relies on its sovereign immunity to keep its employees from being sued. In limited cases, the federal government has waived its sovereign immunity (for example in the Federal Tort Claims Act). The Bivens lawsuit allowed the plaintiff to sue federal officers for excessive force and other violations, arguing that a right without a remedy is not really a right at all because the government can violate it with impunity. Subsequent court decisions, while refusing to overrule Bivens and the few other cases that squeaked through before the tide turned, have refused to extend the Bivens principle to other factual situations.

  12. That Qualified Immunity rubbish again or is it still?

  13. This is what they do to a 70 year old man!
    they all should be in jail for assault!
    WTF! total POS assholes!

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