SPECIAL: Oliva v. Nivar

U.S. Supreme Court Media Kit

José Oliva survived the bloodiest year in Vietnam, but he most feared for his life when he was brutally beaten in an unprovoked attack by federal officers in a Veterans Affairs hospital in his hometown of El Paso. If the Fourth Amendment doesn’t protect a 70-year-old veteran beaten by federal police inside a veterans’ hospital for no reason, it doesn’t protect anyone. That’s why, on January 29, 2021, the Institute for Justice filed a petition to the U.S. Supreme Court asking it to reverse the clearly erroneous 5th U.S. Circuit Court of Appeals decision, which ruled that federal officers, such as those in a VA hospital, may act with impunity and not be held accountable for their actions, no matter how unconstitutional.

José is a native of El Paso, Texas and a Vietnam War vet, who served nearly three decades in law enforcement, and advocated on behalf of veterans in his hometown and nationwide.

In February 2016, federal police working as security at an El Paso VA hospital assaulted José as he was entering the hospital for a dentist appointment. They then charged him for disorderly conduct—charges that were later dismissed.

When José sued the officers, a predictable thing happened. The officers invoked qualified immunity—a controversial doctrine that the Supreme Court invented in 1982 to protect government workers from being sued for unconstitutional conduct. To its great credit, the district court denied the officers qualified immunity—a decision that the officers promptly appealed. The 5th Circuit agreed with the officers and reversed the district court, holding that even if qualified immunity were not available, José still can’t sue because he was assaulted by federal, and not state, officers.

This decision is wrong. Federal officials are not above the Constitution. The 5th Circuit’s decision disregards Supreme Court precedent and departs from the consensus of other courts of appeals that have considered this same issue. As a result, Texas, Louisiana and Mississippi are now constitution-free zones, as far as federal police are concerned. IJ is not going to let that happen. That’s why we teamed up with José to ask the Supreme Court to reverse the 5th Circuit’s decision and let the case proceed to trial. IJ, through its Project on Immunity and Accountability, seeks to ensure that the Constitution serves to limit the government in fact, not just in theory, and that promises enshrined in its Bill of Rights are not empty words but enforced guarantees.

On May 24, the Supreme Court denied review of José’s case, but his story continues to be an important part of our efforts to defeat blanket immunity for federal officials. One day, when we get the Court to change course and bring back accountability, it will be because José started it all.

Case Team




Case Documents

Media Resources

Get in touch with the media contact and take a look at the image resources for the case.

John E. Kramer Vice President for Strategic Relations [email protected]

José Oliva’s years of service

After graduating high school in his hometown of El Paso, Texas, José Oliva served in Vietnam. When José came home, he dedicated his life to serving in law enforcement, at both state and federal levels. Thirty years later, José retired and was given a gold watch commemorating his service.

José’s unprovoked encounter with federal police officers

On February 16, 2016, José was on his way to a dentist appointment at El Paso’s Veterans Affairs hospital. As he had many times before, José entered the VA building and got in line to go through security. After he placed his belongings into a plastic bin, a federal officer named Mario Nivar twice asked José for his ID. Each time, José told the officer his ID was not on him, but in the plastic bin that was being scanned. Irritated at what he perceived to be a lack of deference, Nivar announced to the other officers nearby, “I got a problem with this man. He’s got an attitude.” Nivar came around the conveyer belt and metal detector, drew out his handcuffs and got in José’s face. Nivar ordered José through the metal detector as another officer, Hector Barahona, gestured for José to proceed. Barahona, who was significantly taller and larger than José, suddenly yanked up the veteran’s arm, causing his rotator cuff to painfully tear. He then forced José’s arm down, which exacerbated the injury. At the same time, Nivar grabbed José from behind, choked the 70-year-old man and slammed him to the ground. Barahona helped Nivar to incapacitate José by wrenching José’s arm behind his back so violently that it made a loud popping sound as shown in this video of the assault. A third officer, Mario Garcia, joined the fray. The officers then handcuffed José and detained him against his will, eventually charging him with disorderly conduct—a charge that was later dropped.

The officers permanently damaged José’s shoulder, injured one of his ears and throat, and—in what for José was a bitterly ironic twist—destroyed the watch José received for his decades of service in law enforcement.

José Seeks Accountability

José is justifiably upset at what happened, but not just because the officers injured him. As an American who served to protect the rights we hold dear—including the constitutional constraints on the power of those in government—José was disturbed by the officers’ actions. José wanted to hold these officers to account for what they did to him, so, after a local prosecutor declined to bring criminal charges against the officers, José filed suit in federal court for violations of his Fourth Amendment rights.

The answer to his lawsuit came—as it too often does—in the form of “qualified immunity.” Soon after his lawsuit was filed, the officers invoked this doctrine—which is found nowhere in the Constitution but, instead, was created by the U.S. Supreme Court in 1982—to prevent the trial against them from going forward.

Qualified immunity shields government officials from constitutional lawsuits that may hold them liable for their actions. It is notoriously difficult to overcome. Why? Because even if a government official acts in bad faith, so long as a court in the relevant jurisdiction has not previously ruled that that precise action at issue was unconstitutional, the court can grant qualified immunity to the official or officer and they cannot be held to account in a court of law. (Just how precise must the offense be? In one illustrative example, a court ruled that officers who had sicced their police dog on a suspect who had knelt with his hands up could be granted qualified immunity for their actions because an earlier precedent only held that it was unconstitutional for officers to sic their dog on a suspect who had been lying down in surrender. Qualified immunity encourages the courts to be that exacting and particular in their rulings, which, as will be explained below, came into play in José’s case.) Even under this extremely deferential standard, however, the district court denied the officers qualified immunity, ruling that officials who use excessive force on unresisting individuals clearly violate the Constitution and should stand trial to face consequences of their actions.

But the 5th Circuit dismissed José’s case. To do so, the court relied not on qualified immunity, but on yet another protective doctrine from the 1980s, which makes it more difficult to sue federal officials for violations of constitutional rights than it is to sue state officials. Whatever the merits of this doctrine, the Supreme Court made it clear that when it comes to search-and-seizure claims under the Fourth Amendment—the precise claim made by José here—federal officials can be sued, despite their federal status. But the Fifth Circuit departed from this Supreme Court precedent, holding that because the officers who assaulted José happened to work for the federal, rather than state, government, the Fourth Amendment guarantees simply cannot be enforced. What’s more, the 5th Circuit based its ruling on a hyper-specific set of facts that would absolve literally any federal government official from accountability unless they matched the exact fact pattern of the initial case—Bivens v. Six Unnamed Agents of the Bureau of Narcotics—in which the High Court initially held federal government employees liable when they violate someone’s Fourth Amendment rights.

Simply put, the 5th Circuit’s ruling is wrong. Federal officers are not above the Constitution and José has the right to sue them for what they did to him. In its 1971 decision, Bivens v. Six Unnamed Agents of the Bureau of Narcotics, the Supreme Court specifically held that “damages may be obtained for injuries consequent upon the violation of the Fourth Amendment by federal officials.” A more recent case further bolstered that ruling, stating that “[t]he settled law of Bivens in this common and recurrent sphere of law enforcement, and the undoubted reliance upon it as a fixed principle in the law, are powerful reasons to retain it in that sphere.”

The 5th Circuit’s disregard for the Supreme Court’s precedent improperly cabins Bivens to the narrowest facts of that case, finding that anyone who brought a suit against federal government employees could only proceed if the facts of their case perfectly matched the facts of Bivens. The 5th Circuit held that because José was not handcuffed by a narcotics agent in front of his family—as was the case with Webster Bivens—and instead was choked to the ground by a federal security guard in front of strangers, the Constitution does not protect him. If that sounds wrong, that’s because it is. That’s why seven other federal courts of appeals that have considered the issue did not join the 5th Circuit’s determination, creating a strange result where federal police in Texas, Louisiana and Mississippi are held to a different, much lower standard of accountability than in the rest of the nation.

To right this wrong, José, represented by the Institute for Justice (IJ), appealed his case to the U.S. Supreme Court on January 29, asking the High Court to grant review and overturn this damaging 5th Circuit decision. José’s petition is part of IJ’s Project on Immunity and Accountability, which is devoted to the simple idea that government officials are not above the law; if citizens must follow the law, then government employees must follow the Constitution.

The Supreme Court will have to decide which court was right in José Oliva’s case: the trial court that ruled the officers should have known they couldn’t beat and choke a veteran in an unprovoked attack, or the 5th Circuit, that ruled that it didn’t matter and the officers cannot be held to account for their actions, thus fully immunizing the officers. For the sake of every veteran who goes into a VA facility, José hopes the Supreme Court accepts his case and finds in his favor

The argument

In the petition for certiorari, the Institute for Justice argues that the 5th Circuit impermissibly departed from Supreme Court precedent, which specifically states that you can sue directly under the Constitution for violations of your Fourth Amendment rights. The 5th Circuit also broke from a consensus of seven other federal courts of appeals on this issue. The Supreme Court needs to grant review in this case to ensure that the availability of each American’s constitutional rights does not depend on whether you live in Texas instead of Tennessee. Even if the 5th Circuit’s decision is given its most generous interpretation, it means that Veterans Affairs facilities in the 5th Circuit—Texas, Louisiana and Mississippi—are now Constitution-free zones, with 2 million veterans having no way for holding more than 17,000 federal police accountable.

José’s petition further asks the Court to call for the view of the U.S. Solicitor General. With the new administration in office, it will be important for the Court, as well as the rest of the nation, to know where the chief appellate lawyer for the federal government stands on the issue of accountability for federal police.

As a former law enforcement officer, José’s goal in bringing this lawsuit is to ensure that other law enforcement officers respect the Constitution. When rogue law enforcement agents are allowed to violate the Constitution without consequence, the reputations of good law enforcement officers suffer.

The litigation team

Institute for Justice Attorneys Patrick Jaicomo, Anya Bidwell and Alexa Gervasi represent José Oliva.

The Institute for Justice

Founded in 1991, the Institute for Justice is the national law firm for liberty. IJ is dedicated to fighting judge-made rules that make it extremely difficult to hold government officials accountable for violating the Constitution. IJ’s efforts include direct lawsuits against government officials, appellate friend-of-the-court briefs in support of individuals who have suffered at the hands of government officials, and outreach to members of the public who want to know more about the difficulties of suing governments and their employees for violations of individual rights. IJ does all this because of its fundamental belief that following the Constitution means being held accountable for violating it.

For more information on this case, visit https://ij.org/case/oliva-v-nivar/ or contact John E. Kramer, vice president for communications at [email protected] or call (703) 682-9323 ext. 205.

Related Cases