Hastings Constitutional Law Quarterly


The 2021 term of the Supreme Court of the United States produced two opinions significantly dampening the future of constitutional tort actions, which are cases brought to remedy a government agent’s deprivation of an individual’s constitutional rights. First, in Egbert v. Boule, the Court refused to extend Bivens liability to an excessive force claim made against a United States Border Patrol Agent. Second, in Vega v. Tekoh, the Court contravened the traditional understanding of the Fifth Amendment’s Self-Incrimination Clause by preventing a § 1983 civil rights action against a sheriff’s deputy who procured an un-Mirandized statement from a criminal suspect. Read together, these decisions, along with the Court’s disregard for stare decisis in overturning Roe v. Wade and fifty years of precedent through Dobbs v. Jackson Women’s Health Organization, indicate the Court’s majority may soon further weaken constitutional torts.

This Article is one of the first to analyze the Court’s holdings in Egbert and Vega. To do so, this Article briefly surveys the history and development of constitutional torts in the United States, with a particular focus on the last sixty years of the Supreme Court’s jurisprudence. Subsequently, this Article methodically recounts the facts, arguments of counsel, and majority, concurring, and dissenting opinions in Egbert and Vega. Thereafter, using the background of constitutional torts, both through Bivens and § 1983, and the Court’s recent pronouncements, this Article argues that we are witnessing the last days of constitutional torts as we presently comprehend them. The Court’s open hostility to Bivens in Egbert and its evasive reasoning in Vega indicate the Court’s majority intends to significantly restrict or prohibit actions to enforce constitutional rights. Finally, this Article concludes by foreshadowing the significant consequences should the Court proceed along this path. Most notably, if individuals are not able to seek adequate redress for constitutional deprivations suffered at the hands of government agents, the Constitution’s safeguards are nullities.