Nahmod Law

 By its very language, § 1983 actions can be brought against state and local law enforcement officers only when they act under color of state law, not federal law. In practical terms, this means that their allegedly unconstitutional conduct must constitute state action within the meaning of the Fourteenth Amendment. See, on state action, Chapter 2, Nahmod, Civil Rights & Civil Liberties Litigation: The Law of Section 1983 (2025-26 ed.)(West/Westlaw).

The Bivens Remedy

In contrast, if state and local law enforcement officers are found to have acted under color of federal law, any damages remedies for constitutional violations must be sought under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which implied a Fourth Amendment cause of action for damages from the Fourth Amendment itself.

However, under recent restrictive Supreme Court case law, such Bivens claims can ordinarily go forward only if the case does not arise in a new Bivens context. If it does arise in a new Bivens context, a Bivens remedy is unavailable if there are “special factors” indicating that the judiciary is “less equipped than Congress” to decide whether such a claim should proceed. The Supreme Court has emphasized that if there is just a single reason to reach that conclusion, then a Bivens remedy is unavailable.

Now consider the following two circuit court cases, one from the First Circuit and the other from the Ninth.

The First Circuit’s Jakuttis Decision: Federal, Not State, Action

In Jakuttis v. Town of Dracut, 95 F.4^th 22 (1^st Cir. 2024), a former town police officer sued a state trooper, among other defendants (including a United States Drug Enforcement (DEA) agent), under § 1983 alleging First Amendment retaliation arising out of actions taken against him because of his reports of wrongdoing by the town police department in connection with a federal law enforcement task force investigating corruption. According to the First Circuit, the state trooper was not a state actor but was instead acting under color of federal law. The plaintiff’s complaint alleged that the state trooper learned of plaintiff’s corruption assertions when the state trooper was on the job as a federal task force officer, and that he investigated those assertions as a federal task force officer and retaliated against plaintiff while working as a federal task force officer. It was not determinative for state action purposes that the plaintiff alleged that the defendant was a state trooper at all relevant times.

The Ninth Circuit’s Thai Decision: Federal, Not State, Action

Similarly, in Thai v. County of Los Angeles, 127 F.4th 1254 (9^th Cir. 2025), two law enforcement officers from the Los Angeles District Attorney’s Office were sued under § 1983 for their allegedly unconstitutional conduct (apparently in violation of the Fourth Amendment) in connection with the plaintiffs’ applications for disability benefits. The Ninth Circuit, considering the “totality of the circumstances,” found that the defendants acted under color of federal, not state law. The officers, who were assigned full-time to a joint federal-state task force addressing disability benefits fraud, were not state actors because “the federal government was the source of authority under which the task force was implemented and because the officers’ day-to-day work was supervised by a federal officer”.

Comment

If the First and Ninth Circuits had found state action present, then the plaintiffs’ damages claims could have proceeded under § 1983. However, since they found that only federal action was present, those damages claims could theoretically only proceed under Bivens.

One might legitimately wonder, though, whether either or both of these damages claims arose in contexts different from Bivens. And if they did, were there “special factors” in these cases that precluded Bivens damages claims?

This is not idle speculation. Both cases stemmed from joint federal and state force cooperation, a not-unusual situation. This is especially the case in a time of joint federal (through ICE) and state enforcement of federal immigration law.

If such immigration enforcement is a context different from Bivens, and if the immigration setting is a special factor because Congress plays a major role, then persons injured by allegedly unconstitutional conduct of federal and state law enforcement officers would not have a damages remedy against either group of officers. A § 1983 damages claim would not be viable because of the absence of state action and a Bivens damages claim might not be viable because of recent Supreme Court restrictions on such claims.