Widely shared images of immigration enforcement agents using violence to carry out the Trump administration’s immigration crackdown have thrust the accountability of federal officers directly into the national spotlight.
Decades of Supreme Court decisions have steadily limited the ability of ordinary citizens to seek financial damages from a federal employee accused of violating their constitutional rights. Depending on the outcome of a case the court hears on November 9, 2026, those lawsuits could be blocked entirely.
The Honolulu Prison Suit
The plaintiff driving this high-stakes litigation is Kekai Watanabe, who filed a $3 million suit against a federal prison nurse. Watanabe stated that he should have been hospitalized or evaluated by a specialist after suffering an attack during a gang-related fight at a prison in Honolulu in 2021. Instead, his lawyers say, he was given over-the-counter pain medication and told to “stop being a cry baby,” Watanabe alleges.
An X-ray taken months afterward revealed a fractured coccyx, with bone chips that had migrated into surrounding soft-tissue areas. Watanabe received no further medical treatment prior to his release in 2024 and remains in tremendous pain today, according to his legal representation.
A Test for Bivens
This lawsuit provides the 6-3 conservative court with a clear pathway to overturn what remains of a controversial 1971 decision, Bivens v. Six Unknown Named Agents, which allowed people to sue federal officers for monetary damages.
Erwin Chemerinsky, dean of the law school and a professor of law at the University of California, Berkeley, said the case has taken on special significance amid calls to hold immigration agents and other federal personnel accountable for actions like the fatal shootings of Renee Nicole Good and Alex Pretti in Minneapolis earlier this year.
If Bivens is eliminated, then there’ll be literally no way to sue in federal court when a federal agent like ICE violates the Constitution.
Conservatives have long criticized the 1971 decision, arguing that the then-liberal Supreme Court overstepped its bounds by granting rights that are not explicitly spelled out in the Constitution.
Over recent years, the high court has sought to restrict the ability to sue federal employees, barring lawsuits in cases deemed “different in a meaningful way” from the details outlined in Bivens or the only two other cases where the court permitted similar constitutional claims.
Legal Arguments and What Comes Next
An appeals court ruled that Watanabe’s claim passes that test, finding it identical to a 1980 Supreme Court decision establishing that federal prison staff violated the Eighth Amendment’s ban on cruel and unusual punishment by failing to respond appropriately to a prisoner’s fatal asthmatic attack. The U.S. Department of Justice now argues that the 1980 precedent is “obsolete” due to more recent court rulings limiting its reach.
Attorneys representing the prison nurse urge the justices to go even further by dismantling the underlying 1971 Bivens decision entirely. Those cases represent “relics of the bygone days when federal courts thought it appropriate to create causes of action Congress had not authorized,” the nurse’s attorneys argued in written filings, adding that the court has since rejected every stitch of Bivens’s reasoning.
Conversely, lawyers for Watanabe counter that Congress effectively authorized such lawsuits when it passed legislation in 1996 that limited – but did not end – those claims. Recent rulings indicate that many justices believe Congress must pass a bill explicitly creating a right to sue.
Rory Little, who teaches constitutional and criminal law at the University of California College of the Law, San Francisco, predicted that the court will either “overrule an old civil rights precedent” or “once again” say it does not apply to the latest case.
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