The Jurisdictional Void: When Federal Agents Kill

I. Introduction: The Erosion of the Bivens Remedy

For more than half a century, the decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics stood as a bulwark against federal overreach. In that seminal 1971 case, the Supreme Court recognized an implied cause of action under the Constitution itself, allowing victims of warrantless searches and excessive force to seek damages from individual federal officers. Justice Brennan, writing for the majority, reasoned that "[h]istorically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty." The logic was rooted in a fundamental principle of rule-of-law societies: where there is a legal right, there must be a legal remedy.

However, the judicial landscape has shifted dramatically in the ensuing decades. Beginning with Ziglar v. Abbasi and accelerating through Hernandez v. Mesa, the Court has systematically narrowed the scope of Bivens, introducing a "two-step inquiry" designed to limit judicial intervention. This retrenchment culminated in the 2022 decision of Egbert v. Boule, a ruling that, while stopping short of explicitly overruling Bivens, has hollowed it out so thoroughly that the remedy effectively no longer exists for modern litigants.

The Court's current doctrine rests on a single, expansive "step": whether there is any rational reason (even one conjured by the Court itself) to think that Congress might be better equipped to create a damages remedy. If such a reason exists—often cited as "national security" or "border integrity"—the judiciary must decline to extend Bivens to the "new context." As Justice Gorsuch noted in his concurrence, the Court has effectively arrogated to itself the power to decide when the Constitution is enforceable by damages, and it has decided the answer is "almost never."

II. The "New Context" Trap and the National Security Blank Check

The central mechanism of the Egbert decision is the "new context" test. The Court held that if a case differs in any meaningful way from the three previous instances where a Bivens remedy was improved, it constitutes a new context. This definition of "meaningful difference" has become imperceptibly broad. A difference in the rank of the officer, the statutory mandate of the agency, or even the specific device used (e.g., a Taser versus a baton) can be sufficient to defeat the claim.

Most troubling is the Court's deference to "National Security" as a "special factor counseling hesitation." In Egbert, the Court applied this rationale to a Border Patrol agent operating more than 100 miles from the border, investigating a bed-and-breakfast operator. The Court reasoned that because the agent was technically enforcing immigration laws, "national security" concerns were implicated, thus barring judicial review. This reasoning creates a dangerous syllogism: virtually all federal law enforcement can be tied to "homeland security" in some capacity. If that tie is sufficient to trigger the "special factor" exemption, then no federal agent—whether DEA, FBI, or ICE—is subject to civil liability.

This creates a class of "super-citizens": federal agents who operate with the police powers of the state (the power to arrest, detain, and use lethal force) but without the liability exposure faced by their state and local counterparts under 42 U.S.C. § 1983. A Minneapolis police officer who shoots an unarmed motorist can be sued for Excessive Force. An ICE agent who commits the exact same act, on the exact same street, is immune. This violation of the underlying principles of Equal Protection is stark, yet it remains the law of the land.

III. Case Study: The Minneapolis ICE Shootings of 2026

The theoretical dangers of Egbert manifested with tragic clarity in January 2026, when agents from the U.S. Immigration and Customs Enforcement (ICE) "Fugitive Operations Team" were involved in two fatal shootings in Minneapolis within a three-week span. These incidents serve as a grim stress test for the post-Egbert legal order.

On January 7, 2026, Renée Nicole Good was driving her personal vehicle when she was intercepted by an unmarked SUV driven by ICE Agent Jonathan Ross. According to forensic reconstruction, Agent Ross fired three rounds through the passenger window of Good's moving vehicle, striking her in the temporal lobe. The agency initially claimed Good attempted to "use the vehicle as a weapon," a standard boilerplate defense in officer-involved shootings. However, trajectory analysis suggests the shots were fired from a perpendicular angle, consistent with a "drive-by" interception rather than a self-defense reaction to an oncoming threat.

Under a pre-2017 Bivens analysis, Good's estate would have a straightforward Fourth Amendment claim. The use of deadly force against a non-threatening motorist is a clear constitutional violation under Tennessee v. Garner. However, legally, the Egbert precedent transforms this from a routine civil rights case into a "new context." The government will argue—and has argued in similar filings—that because Agent Ross was investigating potential immigration violations (a "national security" function), the judiciary is barred from implying a damages remedy. The fact that Good was a U.S. citizen and the timeline of the "national security" nexus is tenuous is irrelevant under the Court's broad deference.

Three weeks later, on January 24, Alex Pretti was shot and killed by a separate federal task force officer while documenting an arrest being performed by U.S. Marshals. Pretti, standing on a public sidewalk, was holding an iPhone 16. The officer involved claimed he mistook the device for a firearm. While this factual dispute (gun vs. phone) would normally be a question for a jury, the structural immunity of the federal agent pre-empts the factual inquiry. Furthermore, Pretti’s attempt to document police activity implicates the First Amendment. The Supreme Court has never recognized a Bivens remedy for First Amendment retaliation, and in Egbert, it explicitly refused to do so. Thus, Pretti’s family faces an even steeper legal climb than Good’s.

IV. The Failure of Alternative Remedies

The Egbert Court justified its restraint by pointing to "alternative remedies" created by Congress or the Executive Branch. Specifically, the Court suggested that the availability of an administrative grievance process (such as filing a complaint with the Department of Homeland Security's Office of Inspector General) helps preclude the need for a judicial damages remedy.

This argument is deeply flawed in practice. An administrative complaint process is not a "remedy" in the legal sense; it offers no restitution to the victim. It is a disciplinary review mechanism for the agency. Access to the Inspector General’s findings is often blocked by the Freedom of Information Act (FOIA) exemptions (specifically Exemption 7(A) for ongoing proceedings), meaning the victim’s family may never know the outcome of the investigation. To construe a silent, internal disciplinary log as a substitute for the "ordinary remedy" of damages is a sophistic distortion of legal remedial theory.

The Federal Tort Claims Act (FTCA) is often cited as the statutory backstop. While the FTCA does allow suits against the United States for certain torts committed by federal employees, it is riddled with exceptions. The "Discretionary Function Exception" (28 U.S.C. § 2680(a)) bars any claim based on an act that involves an element of judgment or choice. Government attorneys routinely argue—with significant success—that an officer’s decision to use force, while perhaps mistaken, was a "discretionary" policy choice shielded from liability. This leaves victims in a "Jurisdictional Void": barred from Bivens by "national security" and barred from the FTCA by "discretionary function."

V. Conclusion

The trajectory of federal immunity jurisprudence suggests that the Supreme Court has fundamentally abandoned the project of holding federal officers accountable through civil litigation. By converting the "special factors" test into a general presumption against liability, the Court has signaled that the efficiency of federal law enforcement supersedes the rights of the individuals policed by it.

For practitioners, this necessitates a radical shift in litigation strategy. We can no longer rely on the implied causes of action of the 20th century. The battle must shift to the granular analysis of agency policy manuals to defeat the Discretionary Function exception, and to a renewed focus on state-law claims where "Task Force" officers act under color of state law. Until Congress accepts the Court’s invitation to codify Bivens—a prospect that seems politically remote—the "Jurisdictional Void" will continue to expand, claiming more lives in the silence of immunity.