Secretary Rumsfeld and the United States moved to dismiss the claims against them. The district court denied in part Secretary Rumsfeld’s motion to dismiss, allowing plaintiffs to proceed with Bivens claims for torture and cruel, inhuman, and degrading treatment, which have been presented as Fifth Amendment substantive due process claims. Vance v. Rumsfeld, 694 F. Supp. 2d 957 (N.D. Ill. 2010). The district court also denied the government’s motion to dismiss the plaintiffs’ property claim. Vance v. Rumsfeld, 2009 WL 2252258 (N.D. Ill. 2009). Secretary Rumsfeld and the United States have appealed, and we consider their appeals pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 1292(b).
We agree with the district court that the plaintiffs may proceed with their Bivens claims against Secretary Rumsfeld. Taking the issues in ascending order of breadth, we agree first, applying the standards of Federal Rule of Civil Procedure 12(b)(6), that plaintiffs have alleged in sufficient detail facts supporting Secretary Rumsfeld’s personal responsibility for the alleged torture. Second, we agree with the district court that Secretary Rumsfeld is not entitled to qualified immunity on the pleadings. The law was clearly established in 2006 that the treatment plaintiffs have alleged was unconstitutional. No reasonable public official could have believed otherwise.
Next, we agree with the district court that a Bivens remedy is available for the alleged torture of civilian U.S. citizens by U.S. military personnel in a war zone. We see no persuasive justification in the Bivens case law or otherwise for defendants’ most sweeping argument, which would deprive civilian U.S. citizens of a civil judicial remedy for torture or even cold-blooded murder by federal officials and soldiers, at any level, in a war zone. United States law provides a civil damages remedy for aliens who are tortured by their own governments. It would be startling and unprecedented to conclude that the United States would not provide such a remedy to its own citizens.
Judge(s): David Hamilton
Jurisdiction: U.S. Court of Appeals, Seventh Circuit
Related Categories: Civil Remedies , Constitutional Law , Government / Politics
|Circuit Court Judge(s)|
|Trial Court Judge(s)|
|Amicus Lawyer(s)||Amicus Law Firm(s)|
|Mark W. DeLaquil||Baker Hostetler LLP|
|David Rivkin, Jr.||Baker Hostetler LLP|
|Louis Clark||GOVERNMENT ACCOUNTABILITY PROJECT|
|Appellant Lawyer(s)||Appellant Law Firm(s)|
|Matthew Collette||United States Department of Justice|
|Appellee Lawyer(s)||Appellee Law Firm(s)|
|Michael Kanovitz||Loevy & Loevy|