On July 1, 2019, we joined ACLU national, the Cato Institute, and the Rutherford Institute in filing an amicus brief in support of a currently pending petition before the Fourth Circuit, for the Court to review en banc the panel decision in the case of Tun-Cos v. Perrotte, 922 F.3d 514 (4th Cir. 2019)

Mr. Tun-Cos and eight other Latino men who lived in Northern Virginia filed suit in federal court against five Immigration and Customs Enforcement (“ICE”) agents. They sought money damages for the ICE agents’ violations of their rights under the Fourth and Fifth Amendments, when the agents stopped and detained them without reasonable suspicion; invaded their homes without a warrant, consent, or probable cause; and seized them illegally. In filing suit, the plaintiffs relied on the case of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which established an implied right of action for damages under the Fourth Amendment against federal law enforcement officers who commit unreasonable searches and seizures.

In a panel decision by the 4th Circuit, the Court refused to recognize the availability of a Bivens remedy in an action against ICE officers for conducting unconstitutional searches and seizures nearly identical to those at issue in Bivens. The Court found that this was a “new context” for Bivens based on the flawed premise that ICE agents, unlike other federal law enforcement officers, operate under a “distinct” statutory mandate – the Immigration and Nationality Act. In its brief, the ACLU argues that this premise is flawed. Numerous other federal law enforcement agencies operate pursuant to “distinct” statutory mandates. Additionally, courts have consistently recognized that search and seizure cases against federal law enforcement officers operating under “distinct” statutory mandates fall within Bivens. Finally, the ACLU argues that en banc review is necessary because of the far-reaching consequences of the 4th Circuit panel’s decision.



Eden Heilman and Jennifer Safstrom, ACLU of Virginia

Date filed

July 1, 2019


U.S. Court of Appeals for the Fourth Circuit



Case number

USCA4 Appeal: 18-1451