Elhady v. Unidentified CBP Agents, No. 20-1339 (6th Cir. 2021)
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Elhady, a U.S. citizen returning from Canada, was detained for questioning by border-patrol agents. They took Elhady’s jacket and shoes, leaving him only his shirt, pants, undergarments, and socks. According to Elhady, the cell “got colder and colder,” and he began shivering uncontrollably. He says he yelled to the officers but they told him, “you’ll be out soon.” After about four hours, the officers told him he could leave. He stated he felt too ill to drive. The officers called an ambulance. The EMT noted that Elhady received the highest score on a test that measured his level of consciousness; he had delayed capillary refill, consistent with exposure to the cold. When he reached the hospital, his temperature was 96.08 degrees, barely below the normal range. The physician let him rest. When Elhady woke up, the doctor told him he was “good to go.” Elhady sued several border-patrol officers, seeking monetary damages under “Bivens.”
The district court found that extending Bivens to provide an implied cause of action here was appropriate and found enough evidence to show that one officer, Bradley, had violated Elhady’s right to be “free from exposure to severe weather and temperatures,” which was clearly established so that qualified immunity did not protect Bradley. The Sixth Circuit reversed. The district court erred in engaging in the “disfavored judicial activity” of recognizing a new Bivens action. National security is a special factor counseling against extending Bivens to the border context.
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