Samuel Rossum * | 25.3 | Comment | Citation: Samuel Rossum, Comment, Constitutional Whodunnits: Maintaining Section 1983 and Bivens Suits Against Unidentified State Actors, 25 U. Pa. J. Const. L. 614 (2023).

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Democracies die in darkness. And so do the prospects of constitutional tort plaintiffs. Whether on account of chaos, prison bars, uniform dress, or

unconsciousness, people who have suffered a constitutional tort (say, police brutality) may have no idea who harmed them. These identification issues can hamper or even foreclose section 1983 and Bivens suits that might otherwise lead to the recovery of damages for constitutional violations. Such failures are unlikely to be a plaintiff’s fault, as vigilance is no match for law enforcement tactics like obscuring badge numbers, tampering with bodycam footage, or plucking protestors off the street in unmarked vans.

Despite the evolution in technique, this is not a novel dilemma. To the contrary, the problem was vivid in 1871 when Congress enacted section

1983, with the legislation’s proponents warning that “[c]ombinations, darker than the night that hides them . . . ha[d] gone unwhipped of justice.” And in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics—the landmark decision granting a path to recovering damages against federal officers for constitutional violations—the identification issue was front and center: The case name speaks for itself. In short, the recurrence of these “whodunnits” is a problem that section 1983 and Bivens actions should be capable of handling.

Unfortunately, the constraints on these suits are baked into the jurisprudence. To be sure, some have clung to the Court’s decision in Bivens as edifying “the right of a plaintiff to sue unknown injurers.” But merely having the right to sue only keeps the courthouse doors open for so long. That is, a plaintiff who pursues a section 1983 or Bivens action to recover damages in these cases may be able to serve a complaint on a batch of officials who were in the vicinity of an offense, but even the shrewdest discovery tactics may not pierce the law enforcement “code of silence.” So plaintiffs run into a wall. In the world of section 1983 and Bivens suits, individual responsibility—not group association—is paramount. Courts who are unable (or unwilling) to stretch these boundaries will thus dismiss cases where the plaintiff cannot pin a real name on John Doe, leaving the victims uncompensated and the masked assailants undeterred.

This Comment explores how current section 1983 and Bivens doctrine thwarts plaintiffs and constrains courts when they must deal with unidentified tortfeasors. Part I lays out the approaches that plaintiffs in ordinary tort actions may take and considers their viability under the special liability regime for constitutional litigation. Part II focuses on the practical barriers that arise when plaintiffs resign themselves to suing John Doe defendants instead of known governmental entities or superiors. Part III takes stock of potential solutions including pleading conspiracies of silence, shifting the burden at trial, and bringing parallel actions via the Federal Tort Claims Act. I then evaluate whether these approaches get at the heart of the problem. All told, though there is likely no silver bullet, understanding how the various obstacles interlock and when the alleged cures will be effective may help provide constitutional tort plaintiffs with a fighting chance in court.

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* J.D., Class of 2023, University of Pennsylvania Law School. B.A., 2020, Rice University.