|Photo courtesy of KNET|
According to court documents, Dora Baires claims that ICE agents apprehended her son who was in the country illegally. The agents took him to the Lerdo Detention Facility where he informed the staff he had Human Immunodeficiency Virus (HIV). The staff doctor, an independent contractor, made an appointment for him to be seen at the Kem Medical Center three weeks later, but did not give him HIV medicine in the meantime. As a result of that failure of treatment, Mr. Baires became sick and died on November 12, 2008.
Interestingly, Mrs. Baires is suing Janet Napaloitano, the Secretary of Homeland Security, and other federal officials stating that their policies render ICE incapable of providing a constitutionally minimal level of care to detained immigrants (presumably in violation of the Cruel and Unusual Punishment Clause of the Eighth Amendment or the Due Process Clause of the Fifth Amendment).
Under Bivens v. Six Unknown Federal Narcotics Agents (U.S. 1971) and its progeny, a person can sue a person acting under the color of federal law for a clear constitutional violation when no other remedy at law is available and the Federal Tort Claims Act does not apply. While it is difficult to assess the legal theory from the opinion, it seems to be that federal officials who create policies that violate the constitution are liable for those policies.
This theory has been raised unsuccessfully a number of times. Schweiker v. Chilicky (U.S. 1988) (finding that social security has a broad remedial structure and, even if it regularly deprives people of constitutional rights, the existence of that structure keeps federal officials shielded from Bivens liability). Bush v. Lucas (U.S. 1983) (finding same with the civil service disciplinary system). However, there is no way to appeal urgent medical care while in ICE detention, in this case Mr. Baires lawyer called the detention facility repeatedly to no avail.
Interestingly, both sides have set up the case to avoid the bar to Bivens in Hui v. Castaneda. In Hui, Bivens was precluded from applying because the sole remedy against a Public Health Service (PHS) officer who mistreated an immigrant in an ICE facility was the Federal Tort Claims Act. Here, the government claims the treating physician was not a PHS officer, but rather an independent contractor.
Judge Breyer is willing to allow Mrs. Baires to amend her pleadings to show which policies actually caused her son's death and how they did so. If she can do so, then she has plead a Bivens case subject to a possible defense from Secretary Napolitano that a common law medical malpractice claim is a sufficient at-law remedy.
The case is Baires v. United States No. C 09-5171 and the opinion is below the jump.
Here is the opinion:
Baires v. United States