SHOOTINGS, SECURITY, AND ARTICULABLE SUSPICION: RETHINKING THE STANDARD FOR NATIONAL SECURITY AS A SPECIAL FACTOR PREVENTING BIVENS RECOVERY

Dunker uses the Rodriguez-Hernandez litigations to illustrate the detrimental impact the expansion of national security as a special factor preventing recovery under Bivens will have upon victims of constitutional violations. Additionally, she argues for a new, workable standard to explain when the national security special factor can appropriately prevent a Bivens action. She briefly summarizes the basic requirements for Bivens claims under the clarified framework given by the Supreme Court in Abhasi, and then discusses the expansion of national security as a "special factor" preventing recovery under Bivens after 9/11 and its recent expansion to immigration actions. She also explores the harmful consequences of unlimited judicial deference to federal agents in the name of national security, and presents a new standard for analyzing national security Bivens actions by advocating for a modified version of the "reasonable articulable suspicion" standard in such cases.