Friday’s decision by Judge Collyer, in which she dismissed Bivens claims brought by the families of Anwar al-Aulaqi, his son Abdulrahman, and Samir Khan (arising out of their targeted killing by U.S. forces), has something for everyone. Thus, for example, Judge Collyer rejected the government’s argument that the political question doctrine should apply, explaining (quite rightly, in my view) that the political question doctrine simply has no bearing when it comes to the deprivation of life and liberty by the U.S. government, especially in ex post suits seeking money damages.
Militating in the other direction, Judge Collyer refused to “extend” Bivens to encompass the plaintiffs’ claims under the Due Process Clause of the Fifth Amendment, noting the rather pervasive hostility to Bivens in recent years–especially in national security litigation, as typified in the D.C. Circuit’s Doe v. Rumsfeld decision. I’ve written before at great length about why such hostility to Bivens gets the relevant considerations backwards in national security cases, and Carlos Vázquez and I published an article last year explaining on a more basic level how these cases represent the very judicial lawmaking that is supposedly behind the opposition to Bivens. But whether all of these circuit-level decisions are rightly decided or not, it’s hard to blame Judge Collyer for simply following the trend, at least on the plaintiffs’ due process claims.
At the same time, no “new” Bivens claim arguably needed to be inferred to cover the plaintiffs’ Fourth Amendment claims–since Bivens itself was a Fourth Amendment case. But instead of distinguishing Bivens (however implausibly) and holding that no remedy exists in this context, Judge Collyer opted for a different tack–rejecting the plaintiffs’ Fourth Amendment claim on the merits. As she wrote, “[u]nmanned drones are functionally incapable of ‘seizing’ a person; they are designed to kill, not capture. As the decedents were not ‘seized,’ Plaintiffs have not stated a Fourth Amendment claim.” In other words, because the use of lethal force is not a seizure for Fourth Amendment purposes, there was no need to even decide whether Bivens would support a damages remedy on that ground. The problem with this argument (for which Judge Collyer cites to exactly zero authority) is that it’s squarely foreclosed by Supreme Court precedent–which perhaps explains why the government never even made it (see, e.g., page 23 of the DOJ reply brief).
Thus, in Tennessee v. Garner, the Supreme Court conceded that, although it is not always clear when a seizure begins, “there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” Indeed, the whole point of Garner is to articulate a line for Fourth Amendment purposes that, to be remotely effective, could only be enforced through after-the-fact damages suits.
To be sure, it may well be that a court would ultimately uphold the use of force in these cases as reasonable under the circumstances, thereby satisfying the Fourth Amendment (presumably, such a determination would require access to a whole lot of classified evidence). Or, in the alternative, a court might hold that there is no Bivens remedy for such Fourth Amendment claims notwithstanding Bivens itself, given the myriad differences between ordinary law enforcement activity and overseas uses of military force. (Such a holding would be controversial, in my view, but not unfathomable.) But the critical point for present purposes is that either of these approaches to the Fourth Amendment question would have been far more faithful to prior precedent than a categorical assertion that drone strikes against U.S. citizens don’t implicate the Fourth Amendment at all. So long as Garner is on the books, they clearly do. Thus, even if the D.C. Circuit affirms the dismissal of this suit, here’s hoping it doesn’t affirm such a miserly–and aprecedential–reading of the Fourth Amendment.