# Hicks v. Ferreyra

> District Court, D. Maryland · January 28, 2022

URL: https://www.frixlaw.com/law-library/cases/10206423

## Case

- **Court:** District Court, D. Maryland
- **Decided:** January 28, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10206423

## How later opinions describe it (automated extraction)

- holding that a lawful traffic stop can become unlawful if it is prolonged beyond its purpose

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division

*
NATHANIEL HICKS,
*
Plaintiff,
*
v. Case No.: PWG-16-2521
*
OFFICER GERALD L. FERREYRA, et al.,
*
Defendants.
*
* * * * * * * * * * * * *
MEMORANDUM OPINION
This is a civil case involving a claim, referred to as a Bivens1 claim, under which the
Plaintiff, United States Secret Service Special Agent (now retired) Nathaniel Hicks, alleged a
violation of his constitutional rights that took place on July 15, 2015 by Defendants, United States
Park Police Officers Gerald Ferreyra and Brian Phillips. This case was tried before a jury on July
6-9, 2021, and a jury verdict was rendered in favor of Agent Hicks with an award of compensatory
and punitive damages. Now pending before me is Defendants’ motion for judgment as a matter
of law nothwithstanding the jury’s verdict, or for a new trial. Mot., ECF No. 165. I have reviewed
all the filings2 and find a hearing unnecessary. See Loc. R. 105.6 (D. Md. 2021). For the reasons
stated below, Defendants’ motion is DENIED.

1 Referring to Bivens v. Six Unknown Named Agents of Fed. Bur. Of Narcotics, 403 U.S. 388 (1971).
2 Defendants’ Motion Memorandum, ECF No. 165-1; Plaintiff’s Response in Opposition, ECF No. 168;
Defendants’ Reply, ECF No. 174; and the attached exhibits and appendices.
BACKGROUND3
On July 15, 2015, at approximately 6:00 a.m., Plaintiff Nathaniel Hicks, then a United
States Secret Service Special Agent, was on-duty and parked on the shoulder of Maryland Route
295 North (the Baltimore-Washington Parkway). Fourth Cir. Op. 3, ECF No. 99-2. Agent Hicks
was sitting in his Secret Service issued vehicle, waiting to join a government motorcade for the

Secretary of the Department of Homeland Security. Id.; Am. Compl. ¶¶ 24-26, ECF No. 49-1.
Sometime after 6:00 a.m., United States Park Police (“USPP”) Officer Gerald Ferreyra pulled his
police cruiser behind Agent Hicks’s vehicle and approached the vehicle. Mem. Op. 3, ECF No.
87. As he approached, Officer Ferreyra noticed a handgun located on the passenger’s seat of Agent
Hicks’s vehicle. Id. Officer Ferreyra drew his weapon, after which Agent Hicks quickly identified
himself, showed his Secret Service credentials, and explained that he was on duty, waiting to join
the motorcade. Id.
Despite having no “reason to doubt the validity of [Agent Hicks’s] credentials,” Officer
Ferreyra called for assistance, and USPP Officer Brian Phillips and Sergeant Timothy Wallace

(Officer Ferreyra’s supervisor) subsequently arrived on scene. Id. at 4, 15. About 40 to 59 minutes
later, and well after the motorcade had passed (and with it, Agent Hick’s ability to carry out his
assigned escort duties), the Officers returned to Agent Hicks his credentials and weapon and told
him that he was free to go. Fourth Cir. Op. 4.
This freedom to go was short-lived, however, as the record indicates that Officer Phillips
pulled over Agent Hicks minutes after he left the scene of his first detention, and detained Agent
Hicks a second time. Id.at 4-5. Officer Phillips claimed that Agent Hicks was driving erratically

3 I provide here, for context only, a brief overview of the background of this case. For further background, see
my Memorandum Opinion and Order on Summary Judgement, ECF No. 87, which can also be found at Hicks v.
Ferreyra, 396 F. Supp. 3d 564 (D. Md. 2019), and the Fourth Circuit affirming opinion, ECF No. 99-2, reported at
965 F.3d 302 (4th Cir. 2020).
and illegally talking on his cellular telephone. Mem. Op. 6, ECF No. 87. Although Officer Phillips
“concedes that he recognized [Agent] Hicks when he approached his car, he nevertheless
demanded [Agent] Hicks’s license and registration and detained him further before ultimately
releasing him.” Fourth Cir. Op. 5.
On July 8, 2016, Agent Hicks filed this Bivens action against Officers Ferreyra and Phillips.

Compl., ECF No. 1. Defendants filed a dismissal motion seeking a finding of qualified immunity,
which I denied in April 2017. ECF Nos. 37, 44. On July 28, 2017, Agent Hicks filed an amended
complaint, adding a civil conspiracy cause of action under 42 U.S.C. § 1985. Am. Compl. In
November 2018, Defendants filed a summary judgment motion, ECF No. 78, which was denied
with regard to the Bivens claim and qualified immunity, but granted with regard to the civil
conspiracy charge, ECF No. 87. The ruling was appealed, and on July 14, 2020, the Fourth Circuit
affirmed in part and dismissed in part, finding that Defendants had waived their argument that
Agent Hicks lacked a cause of action under Bivens because the issue had not been raised before
this Court, and dismissing Defendants’ qualified immunity arguments because they raised factual

issues. Fourth Cir. Op. 2, 14, 17.
A jury trial was held from July 6-9, 2021. The jury found for the Plaintiff and made the
following findings in a Special Verdict Form that included special interrogatories:
• Defendant Officer Ferreyra acted under color of law to violate Plaintiff Agent
Hicks’s constitutional rights under the Fourth Amendment during the first
encounter with Agent Hicks.
• Officer Ferreyra’s violation of Agent Hicks’s constitutional rights under the 4th
Amendment caused Agent Hicks to suffer compensatory damages for physical
and/or emotional injury, which the jury awarded in the amount of $80,000 against
Officer Ferreyra.
• Officer Ferreyra acted with malice or reckless indifference to Agent Hicks’s
federally protected 4th Amendment rights, and the jury awarded Agent Hicks
punitive damages of $225,000 against Officer Ferreyra.
• Defendant Officer Phillips acted under color of law to violate Plaintiff Agent
Hick’s constitutional rights under the 4th Amendment during the first encounter
with Agent Hicks and again when he stopped Agent Hicks during the second
encounter.
• Officer Phillips’ violation of Agent Hicks’s constitutional rights caused Agent
Hicks to suffer compensatory damages for physical and/or emotional injury,
which the jury awarded in the amount of $125,000 against Officer Phillips.
• Officer Phillips acted with malice or reckless indifference to Agent Hicks’s
federally protected rights, and the jury awarded Agent Hicks punitive damages of
$300,000 against Officer Phillips.
• The jury also made factual findings by answering special interrogatories as
follows:

1. That Agent Hicks appeared to be asleep to Officer Ferreyra when Officer Ferreyra
first approached the front passenger side of the 2014 Chevrolet Impala?
__X___ YES _____ NO
2. That it appeared to Officer Ferreyra that Agent Hicks reached for the gun on the
front passenger seat of the 2014 Chevrolet Impala in response to Officer Ferreyra
knocking on the front passenger window?
_____ YES __X___ NO
3. That Officer Ferreyra knew that Agent Hicks was a Secret Service Agent once he
properly verified his credentials?
__X___ YES _____ NO
4. That Officer Ferreyra followed a customary practice within U.S. Park Police when
he requested a supervisor’s presence on the scene?
_____ YES __X___ NO
5. That Officer Phillips left the scene of the first encounter before Agent Hicks?
__X___ YES _____ NO
6. That the totality of Officers Ferreyra and Phillips’ actions were reasonably
necessary at the scene of the first encounter?
_____ YES __X___ NO
7. That after leaving the scene of the first encounter, Officer Phillips observed a
motorist driving erratically and talking on his mobile phone as he traveled
northbound on I-295?
_____ YES __X___ NO
8. That Officer Phillips realized it was Agent Hicks driving the vehicle prior to pulling
the vehicle over?
__X___ YES _____ NO
9. That Officer Phillips realized it was Agent Hicks driving the vehicle prior to
demanding Agent Hicks’s license?
__X___ YES _____ NO
Special Verdict Form, ECF No. 150.
Defendants now move for this Court to (1) grant them qualified immunity; (2) enter
judgment as a matter of law notwithstanding the jury’s verdict on the basis that Plaintiff’s claim
represents an improper extension of the remedy set forth in Bivens, 403 U.S. 388; (3) order a new
trial due to prejudice that resulted from the admission of indemnification evidence during
Plaintiff’s rebuttal closing argument; and/or (4) order a new trial nisi remittitur on the grounds that
the compensatory and punitive damages award was excessive and unsupported by the evidence.
Mot., ECF No. 165.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 50(b) provides that a party may file a renewed motion for
judgment as a matter of law within twenty-eight days after entry of judgment, and a Court may:
(1) allow judgment on the verdict, if the jury returned a verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law.
Fed. R. Civ. P. 50(b). When considering a motion under Rule 50, the court views the evidence in
the light most favorable to the non-movant. Gregg v. Ham, 678 F.3d 333, 341 (4th Cir. 2012). The
court gives the non-movant the benefit of all reasonable inferences from the evidence, asks whether
there is “substantial evidence in the record to support the jury’s findings,” but does not make
credibility determinations or weigh the evidence. Anderson v. Russell, 247 F.3d 125, 129 (4th Cir.
2001); Reeves v. Sanderson Plumbing, 530 U.S. 133, 150-51 (2000) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986)).

ANALYSIS
I. Qualified Immunity
Qualified immunity “protects law enforcement agents from federal claims when they act
in objectively reasonable reliance on existing law.” Queen v. Prince George’s Cnty., 188 F. Supp.
3d 535, 541 (D. Md. 2016) (quoting Rockwell v. Mayor & City Council of Balt., No. RDB-13-
3049, 2014 WL 949859, at *8 n.10 (D. Md. Mar. 11, 2014)). It “balances two important interests—
the need to hold public officials accountable when they exercise power irresponsibly and the need
to shield officials from harassment, distraction, and liability when they perform their duties
reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009).
“The doctrine shields government officials from liability for civil damages, provided that

their conduct does not violate clearly established statutory or constitutional rights within the
knowledge of a reasonable person.” Wingate v. Fulford, 987 F.3d 299, 311 (4th Cir. 2021) (citing
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The defendant carries the burden of proving
qualified immunity. Id. (citing Meyers v. Balt. Cnty., 713 F.3d 723, 731 (4th Cir. 2013)). To meet
that burden, the defendant must show either that (1) no constitutional right was violated, or (2)
“that the right was not clearly established at the time” the violative conduct occurred. Id.
A right is clearly established when the law has “been authoritatively decided by the
Supreme Court, the appropriate United States Court of Appeals, or the highest court of the state.”
Wilson v. Layne, 141 F.3d 111, 114 (4th Cir. 1998) (citation omitted). “A right need not be
recognized by a court in a specific factual context before such right may be considered ‘clearly
established’ for purposes of qualified immunity.” Wilson v. Prince George’s Cnty., Maryland,
893 F.3d 213, 221 (4th Cir. 2018). The Fourth Circuit has provided the following guidance when
assessing whether a right was clearly established:

[A court must] first look to cases from the Supreme Court, this
Court, or the highest court of the state in which the action arose. In
the absence of directly on-point, binding authority, courts may also
consider whether the right was clearly established based on general
constitutional principles or a consensus of persuasive authority. The
Supreme Court has ruled against defining a right at too high a level
of generality and held that doing so fails to provide fair warning to
officers that their conduct is unlawful outside an obvious case.
Ray v. Roane, 948 F.3d 222, 229 (4th Cir. 2020) (citations omitted). The Supreme Court has
stressed that the “specificity” of the legal principle is “especially important in the Fourth
Amendment context.” District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (quoting
Mullenix v. Luna, 577 U.S. 7, 12 (2015)). “Of course, there can be the rare ‘obvious case,’ where
the unlawfulness of the officer’s conduct is sufficiently clear even though existing precedent does
not address similar circumstances.” Id.
The Court may “exercise [its] sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in light of the circumstances in the particular
case at hand.” Pearson, 555 U.S. at 236. In the context before me, a jury has found that the officers
violated Agent Hicks’s Fourth Amendment rights. At Defendants’ request,4 the jury was given
special interrogatories for the purpose of deciding issues of fact necessary for me to determine
qualified immunity. See Yates v. Terry, 817 F.3d 877, 882 n. 2 (4th Cir. 2016) (quoting Willingham

4 I note that Plaintiff objected to the use of special interrogatories, but his objection was overruled. See Pretrial
Order 18-19, ECF Nos. 117, 131.
v. Crooke, 412 F.3d 553, 560 (4th Cir. 2005) (“Where ‘a dispute of material fact precludes a
conclusive ruling on qualified immunity at the summary judgment stage, the district court should
submit factual questions to the jury and reserve for itself the legal question of whether the
defendant is entitled to qualified immunity on the facts found by the jury.’”).
The facts, as found by the jury, establish that during the first of the two encounters, Officer

Ferreyra approached a vehicle parked at the side of the road and knocked on the front passenger
window because the driver (Agent Hicks) appeared to be asleep. Special Verdict, ECF No. 150.
In response, Agent Hicks provided his Secret Service credentials, but he did not reach for his gun
on the front passenger seat. Id. Thereafter, Officers Ferreyra and Phillips unreasonably detained
Agent Hicks knowing that he was a Secret Service Agent. Id. Officer Ferreyra was not following
a customary practice within the USPP when he requested a supervisor’s presence on the scene. Id.
With regard to the second encounter, the jury found that Officer Phillips left the scene of the first
encounter before Agent Hicks, and then pulled Agent Hicks’s vehicle over and demanded his
license. Id. Officer Phillips knew that it was Agent Hicks driving the vehicle before pulling the

vehicle over, and he had not observed the vehicle being driven erratically nor did he observe the
driver talking on his mobile phone. Id. The jury also found that both officers acted with malice
or reckless indifference to Agent Hicks’s Fourth Amendment rights. Id.
Therefore, constitutional violations having been established, I shall focus my analysis on
whether the rights violated by Defendants were clearly established in July 2015, beginning with
the violation that occurred during the first encounter. “The first step in determining whether a
constitutional right is clearly established requires ‘defin[ing] the precise right into which we are
inquiring.’” Halcomb v. Ravenell, 992 F.3d 316, 319 (4th Cir. 2021) (quoting Armstrong v. Village
of Pinehurst, 810 F.3d 892, 907 (4th Cir. 2016)). The parties agree that it was reasonable under
the circumstances of this case—a parked vehicle with a driver who appeared to be asleep and a
firearm visible on the passenger seat—for Officer Ferreyra to knock on the vehicle window and
briefly detain Agent Hicks while checking his identification. See Mot. Mem. 4; Resp. 3, 5 n.3.
However, Agent Hicks had the right to not be further detained without probable cause or even a
reasonable, articulable suspicion once his identification had been established as a law enforcement

officer authorized to carry a firearm. See, e.g., Illinois v. Caballes, 543 U.S. 405, 407 (2005)
(holding that a lawful traffic stop can become unlawful if it is prolonged beyond its purpose);
Rodriguez v. United States, 575 U.S. 348, 354 (2015) (noting that a detention may last no longer
than necessary to effectuate its mission).
“After defining the right, we ask whether the law ‘is sufficiently clear that every reasonable
official would have understood that what he is doing violates that right.’” Halcomb, 992 F.3d at
320 (quoting Armstrong, 810 F.3d at 907). In my earlier decisions in this case, I held that the
constitutional right not to be detained without probable cause was clearly established. See Mem.
Op. 6-7, ECF No. 44; Mem. Op. 13-14, 17, ECF No. 87. Defendants argue that I must also consider

the first two minutes of the encounter in the totality of the circumstances because what happened
during that time explains “why” the first encounter lasted as long as it did. Mot. Mem. 4. However,
the Defendants’ subjective rationalization of their conduct is not relevant to whether their conduct
was objectively reasonable. Regardless whether the stop was initially premised on a welfare check
rather than suspicion of criminal activity, Defendants continued to detain Agent Hicks long after
determining that he was an on-duty law enforcement officer who was legally authorized to carry a
firearm. Under the particular circumstances facing Officers Ferreyra and Phillips, as found by the
jury, and as described by the officers themselves, there was no probable cause to further detain
Agent Hicks, and the Defendants had no reasonable suspicion of criminal activity. That it was an
unusual situation does not change clearly established law requiring probable cause or reasonable
suspicion for Defendants to further detain Agent Hicks.5 Defendants do not argue that they made
a mistake of fact or law but argue that it was reasonable to call a supervisor. However, no
reasonable officer would believe it was lawful to detain an individual without legal justification.
And both Officers testified that they had received training regarding their obligations under the

Fourth Amendment and that they understood that they could not detain a person in violation of the
Fourth Amendment. Tr. 73:5-13; 151:8-16, July 7, 2021, ECF No. 159. Therefore, qualified
immunity is not available to Defendants under the circumstances of the first encounter.
With regard to the second encounter, Agent Hicks had a Fourth Amendment right not to
be stopped absent a “reasonable, articulable suspicion” that he had been, currently was, or was
about to be “engaged in criminal activity.” United States v. Place, 462 U.S. 696, 702 (1983). This
right also was clearly established in July 2015. See, e.g., id.; United States v. Singh, 363 F.3d 347,
355 (4th Cir. 2004) (“A reasonable suspicion exists when law enforcement officers possess a
particularized and objective basis for suspecting the person stopped of criminal activity.”). It is

simply not credible to suggest that a reasonable officer in July 2015 would not know that a vehicle
stop required at minimum a reasonable suspicion of some criminal activity.
Based on the particular circumstances present in this case, Officer Phillips had no
reasonable suspicion that Agent Hicks was engaged in criminal activity before pulling him over
and demanding his license. The jury found that Officer Phillips knew it was Agent Hicks before

5 The cases cited by Defendants are not to the contrary. See Mot. App’x A, ECF No. 165-6; Reply 5-6 (citing
two recent excessive force cases). None of the cited cases support the contention that an individual may be detained
absent probable cause or reasonable suspicion.
stopping him. Special Verdict 5-6, ECF No. 150.6 Officer Phillips has not carried his burden of
establishing entitlement to qualified immunity under the circumstances of the second encounter.
Accordingly, Defendants’ request for a grant of qualified immunity is DENIED.
II. Proper Extension of Bivens
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics creates an implied

cause of action under the Fourth Amendment for damages. 403 U.S. 388, 397 (1971). The Supreme
Court also has recognized implied causes of actions in two other constitutional violation cases: a
Fifth Amendment Due Process Clause claim for gender discrimination, Davis v. Passman, 442
U.S. 228, 248-49 (1979), and an Eighth Amendment Cruel and Unusual Punishment Clause claim
for “failure to provide adequate medical treatment.” Carlson v. Green, 446 U.S. 14, 19 (1980).
However, while recognizing that Bivens is settled law in the area of law enforcement, the Supreme
Court has adopted a different “approach to recognizing implied causes of action,” and expansions
of a Bivens remedy to a “new context or new category of defendants” is “a disfavored judicial
activity.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017) (citations omitted). After declining to
extend Bivens to several other types of cases, the Supreme Court consequently adopted a two-part

test in Ziglar v. Abbasi for courts to use in determining whether a Bivens remedy should be made
available. Id. at 1857-60.
First, courts must determine if the case “presents a ‘new Bivens context.’” Tun-Cos v.
Perrotte, 922 F.3d 514, 522 (4th Cir. 2019). “If the case is different in a meaningful way from
previous Bivens cases decided by this Court, then the context is new.” Abbasi, 137 S. Ct. at 1859.

6 Defendants erroneously assert that the jury agreed that Officer Phillips observed a motorist driving erratically
while talking on his cell phone. Mot. Mem. 7 (citing Special Verdict, Special Interrogatory No. 7). It did not. The
jury found by a preponderance of the evidence that Officer Phillips did not observe a motorist driving erratically while
talking on his mobile phone. Special Verdict 5, ECF No. 150.
A non-comprehensive list of factors to consider in analyzing whether the case differences are
meaningful enough to create a new Bivens context includes:
[T]he rank of the officers involved; the constitutional right at issue;
the generality or specificity of the official action; the extent of
judicial guidance as to how an officer should respond to the problem
or emergency to be confronted; the statutory or other legal mandate
under which the officer was operating; the risk of disruptive
intrusion by the Judiciary into the functioning of other branches; or
the presence of potential special factors that previous Bivens cases
did not consider.
Id. at 1860; see also Hernandez v. Mesa, 140 S. Ct. 735 (2020) (recognizing that the list is not
exhaustive and identifying “separation-of-powers principles” as being central to the analysis).
Although differences may be slight, “[g]iven this Court’s expressed caution about extending the
Bivens remedy, . . . the new-context inquiry is easily satisfied.” Id. at 1865. “If the context is not
new—i.e., if the case is not “different in [any] meaningful way” from the three cases in which the
Court has recognized a Bivens remedy—then a Bivens remedy continues to be available.” Tun-
Cos, 922 F.3d at 522-23.
Second, “if the context is new, then courts must, before extending Bivens liability, evaluate
whether there are “special factors counselling hesitation in the absence of affirmative action by
Congress.” Id. at 523 (quoting Abbasi, 137 S. Ct. at 1857). The inquiry in determining whether
there are special factors present is “whether the Judiciary is well suited, absent congressional action
or instruction, to consider and weigh the costs and benefits of allowing a damages action to
proceed.” Abbasi, 137 S. Ct. at 1857-58. Alternative remedies should also be taken into account.
See id. at 1858 (“[I]f there is an alternative remedial structure present in a certain case, that alone
may limit the power of the Judiciary to infer a new Bivens cause of action.”). A Bivens remedy is
not available if any special factors which counsel hesitation are present. Tun-Cos, 922 F.3d at 523.
In creating this test, the Abbasi Court emphasized “that this opinion is not intended to cast
doubt on the continued force, or even the necessity, of Bivens in the search-and-seizure context in
which it arose” and 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.” Abbasi, 137 S. Ct. at 1856-57.7

Plaintiff argues that he presents a “classic Bivens scenario that is no different from hosts of
other Bivens claims that courts have consistently recognized.” Resp. 9. And he notes the Fourth
Circuit’s comment when reviewing this case on interlocutory appeal—
along every dimension the Supreme Court has identified as relevant
to the inquiry, this case appears to represent not an extension of
Bivens so much as a replay: Just as in Bivens, Hicks seeks to hold
accountable line-level agents of a federal criminal law enforcement
agency, for violations of the Fourth Amendment, committed in the
course of a routine law-enforcement action.
Id. (quoting Hicks, 965 F.3d at 311 (emphasis added)). Defendants dismiss the Fourth Circuit’s
observations as dictum and irrelevant in light of its more recent opinion in Annappareddy v.
Pascale, 996 F.3d 120 (4th Cir. 2021). Reply 9. Defendants contend that the facts of this case are
meaningfully different from Bivens such that a new context is created, specifically: unlike the
plaintiff in Bivens, Agent Hicks was never arrested; he was not asked to step out of his vehicle;
neither he nor his vehicle or home was searched; he was allowed to retain possession of his car
keys and phones; he was not physically harmed; and he was never handcuffed. Mot. Mem. 12.
Additionally, they note that the seizure in this case was by law enforcement of other law
enforcement, thereby creating a new context. Id. at 13.

7 But see Hernandez, 140 S. Ct. 750-52 (Thomas, J., concurring) (suggesting that it was time to consider
discarding the Bivens doctrine).
Based on comparison of this case to Bivens using Abbassi’s suggested factors, I find that
the facts of this case are not meaningfully different from Bivens and do not present either a new
context or a new category of defendants. First, the defendants in Bivens were line-level federal
officers, as are the Defendants in this case. Annappareddy, 996 F.3d at 135 (characterizing a claim
against line-level investigative officers, and not high-ranking officials, as being like Bivens).

Second, Bivens involved the Fourth Amendment right to be free of unreasonable searches
and seizures. 403 U.S. at 389-90. I approach the review of a new context with caution,
understanding that a “claim may arise in a new context even if it is based on the same constitutional
provision as a claim in a case in which a damages remedy was previously recognized.” Hernandez,
140 S. Ct. at 743. The Fourth Circuit recognized this distinction in Annappareddy, in which it
distinguished Bivens as a seizure conducted without a warrant, which implicates a “distinct Fourth
Amendment guarantee.” 996 F.3d at 135. This case also involves a Fourth Amendment warrantless
seizure, and the “right at issue” is not “meaningfully different from the one at issue in Bivens
itself.” Id. (quoting Abbasi, 137 S. Ct. at 1860). While the traffic stop encounters at issue here

are factually different from the “apprehension, detention, and physical searches at issue in Bivens,”
id. (quoting Farah v. Weyker, 926 F.3d 492, 499 (8th Cir. 2019)), it does not implicate a different
legal standard—the requirement for the officers to have probable cause or reasonable suspicion
for a seizure to be reasonable. See, e.g., Whren v. United States, 517 U.S. 806, 809 (1996)
(“Temporary detention of individuals during the stop of an automobile by the police . . . constitutes
a ‘seizure.’”); Terry v. Ohio, 392 U.S. 1, 20 (1968) (“[t]he conduct involved in this case must be
tested by the Fourth Amendment’s general proscription against unreasonable searches and
seizures.”).8
Further, although the authority under which the officers in Bivens acted was for narcotics
violations, Bivens, 403 U.S. at 388, Fourth Circuit precedent suggests that legal mandates create a
new Bivens context only if the authority is not generally criminal law. See Tun-Cos, 922 F.3d at

524 (holding that because ICE agents enforce immigration law rather than criminal law, the legal
mandate the officers operated under was a new context under Abbasi); Annappareddy, 996 F.3d at
128, 135 (determining that in a case where plaintiffs were charged with health care fraud and
aggravated identity theft, defendants in that case and in Bivens both “sought to enforce only
ordinary criminal laws”). Here, Defendants also operated within the criminal law context. See,
e.g., ECF No. 87 at 15 (citing Md. Code Ann., Crim. Law § 4-203(a)(1), which prohibits vehicular
handgun carrying and transportation on a highway, as authority giving Officer Ferreyra reasonable
suspicion to investigate). This case therefore does not create a new Bivens context under this factor.
Bivens actions are “not ‘a proper vehicle for altering an entity’s policy.’” Abbasi 137 S. Ct.

at 1860 (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001)). The Supreme Court
cautioned that “[e]ven if the action is confined to the conduct of a particular Executive Officer in
a discrete instance, these claims would call into question the formulation and implementation of a
general policy” which would “require inquiry and discovery” into the “discussions and
deliberations that led to the policies and governmental acts being challenged.” Id. The concern is
that “the burden and demand of litigation might well prevent” future officials “from devoting the

8 As the Fourth Circuit noted in Hicks, the Fourth Circuit and other courts also have recognized Fourth
Amendment Bivens claims that occurred in the context of a traffic stop. 965 F.3d at 311-12; Schultz v. Braga, 455
F.3d 470, 474-75, 480 (4th Cir. 2006) (analyzing other aspects of a Bivens claim where plaintiffs mistaken for robbery
suspects were forcibly stopped in their vehicle); McLeod v. Mickle, 765 F. App’x 582, 583 (2d Cir. 2019) (analyzing
other aspects of a Bivens claim where an officer “unreasonably prolonged an otherwise lawful traffic stop . . . to
question McLeod about illegal drugs, call for a K9 unit, and perform a ‘dog sniff’ of his car”).
time and effort required for the proper discharge of their duties.” Id. The Fourth Circuit has held
that an entity’s policy was improperly contested in a Bivens claim in Tun-Cos, where the plaintiffs’
complaint “specifically targeted the Trump Administration’s immigration enforcement policy with
the purpose of altering it,” and contended that the “policy gave rise to the conduct that they alleged
. . . was illegal.” 922 F.3d at 527. Here, this factor does not create a new context because Agent

Hicks challenged only the officers’ specific actions, not the USPP’s policy. Although Defendants
argue that they acted in accordance with understood USPP policy by summoning a supervisor, the
jury categorically rejected this claim, and found that Defendants were not following a customary
practice within the USPP when requesting the supervisor’s presence. Special Verdict 5.
Therefore, this case presents no risk of a disruptive intrusion by the Judiciary into the functioning
of other branches.
The Abassi Court also suggests that courts evaluate “the extent of judicial guidance as to
how an officer should respond to the problem or emergency to be confronted.” 137 S. Ct. at 1860.
As already discussed above, the reasonableness standard for detaining an individual beyond the

scope or purpose of a traffic stop, and the requirement for a reasonable suspicion before making a
traffic stop, are clearly established in the law. There is certainly sufficient judicial guidance for the
police officers to know that their actions in this case were improper. Given the extent of judicial
authority on what constitutes a Fourth Amendment violation for traffic stops, this factor does not
invoke a new Bivens context.
Defendants suggest that Agent Hicks’s status as an on-duty federal agent risks a disruptive
intrusion by the Judiciary into the functioning of the executive branch. Mot. Mem. 13 n.5, 14.
This argument is based on both plaintiff and defendants being federal officials, which Defendants
argue requires me to “delve into the policies and procedures of both the U.S. Secret Service and
the U.S. Park Police.” Reply 12. The Supreme Court has cautioned that “‘courts traditionally
have been reluctant to intrude upon the authority of the Executive in military and national security
affairs’ unless ‘Congress specifically has provided otherwise.’” Abbasi, 137 S. Ct. at 1861 (quoting
Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988)). In a recent case, the Fourth Circuit recognized
a risk of Judiciary intrusion and subsequently declined to extend a Bivens claim to retaliatory

detention in a prison, in part because it “would work a significant intrusion into an area of prison
management that demands quick response and flexibility, and it could expose prison officials to
an influx of manufactured claims.” Earle v. Shreves, 990 F.3d 774, 780-81 (4th Cir. 2021). The
Earle court held that “prison officials must have discretion ‘to determine detention policies, to
assess the endless variety of circumstances in which those policies may be implicated, and to
decide when administrative detention is served and for how long.’” Id. at 780 (quoting Bistrian v.
Levi, 912 F.3d 79, 94 (3d Cir. 2018)). Thus, the issue was “best left to correctional experts.” Id. at
781.
Here, however, there are no implicated military or national security issues that risk

disruptive intrusion by the Judiciary. See Abbasi, 137 S. Ct. at 1861; see also Hernandez, 140 S.
Ct. 735 (holding that a Bivens claim involving a cross-border shooting implicates a risk of
disruptive intrusion). Unlike Earle, the facts of this case with a law enforcement officer plaintiff
do not present similar concerns of intruding into an area with the potential for a high-volume of
this type of specific complaint and which would require institutional expertise and discretion to
evaluate. Moreover, the jury found that the officers were not operating under any official policy,
Special Verdict 5, and this case does not require me to delve into either department’s policies and
procedures or analyze sensitive areas of specialized law. Rather, it is a straightforward case of
routine search and seizure law. Agent Hicks’s constitutional protections did not differ from any
other citizen’s rights based on his employment as a law enforcement officer. There is no showing
of a requirement for caution here. Indeed, “[t]he purpose of Bivens is to deter individual federal
officers from committing constitutional violations.” Correctional Servs. Corp. v. Malesko, 534
U.S. 61, 70 (2001).
Finally, even if the facts of this case presented a new Bivens context, no special factors

counsel hesitation in permitting the Bivens claim. The “special factors” analysis focuses on
maintaining the separation of powers. Abbassi, 137 S. Ct. at 1857 (“[S]eparation-of-powers
principles are or should be central to the analysis.”). “[T]he inquiry must concentrate on whether
the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the
costs and benefits of allowing a damages action to proceed.” Id. at 1857-58. For example, in
Abbassi, the plaintiffs were suing high level executive officials and challenging the Government’s
response to the September 11 attacks, which implicated sensitive issues of national security. Id.
at 1860-61. These types of concerns are simply not present in this case.
Here, Defendants again argue that because the parties involved were all active law

enforcement officials working within the executive branch, it implicates separation-of-powers
concerns. Mot. Mem. 14; Reply 12. And Defendants also argue that alternative remedies were
available to Agent Hicks. Mot. Mem. 14-15; Reply 13. Defendants do not establish why Agent
Hicks’s law enforcement profession constitutes a special factor that counsels hesitation. The
Fourth Circuit has recognized that interference with the “executive branch’s investigative and
prosecutorial functions” is a special factor in a Bivens claim. Annappareddy, 996 F.3d at 137.
However, the intrusive elements which counseled hesitation by the Annappareddy Court appeared
to be the fact that the case involved numerous investigator and prosecutor defendants that would
require the court take “a wide-ranging dive into all actions taken by each actor as well as all
evidence available to investigators, prosecutors, judges, and juries” to evaluate the Bivens claim.
Id. at 137-38 (quoting Farah, 926 F.3d at 500). No such extensive and intrusive inquiry is required
here. Defendants also do not show how the Judiciary’s evaluation of this Bivens case would burden
the executive branch more than in a comparable case with a civilian plaintiff.
Defendants’ argument regarding alternative remedies is also not persuasive. In accordance

with Abbasi, 137 S. Ct. at 1858, the Fourth Circuit has recognized that the existence of an
alternative remedial structure is a special factor that counsels hesitation. Tun-Cos, 922 F.3d at 526.
The Fourth Circuit has suggested that even if the remedy does not directly address the
constitutional violation, the question is “whether an elaborate remedial system . . . should be
augmented by the creation of a new judicial remedy.” See id. at 526-27 (quoting Bush v. Lucas,
462 U.S. 367, 388 (1983)) (discussing how the INA is a relevant alternative remedy even despite
how it does not “redress constitutional violations that occur apart from removal proceedings”). If
the remedy is unavailable to the plaintiff, “[t]he fact that Congress has expressly provided a
damages remedy for some victims of this particular type of injury, but not for others, suggests that

it considered the issue and made a deliberate choice.” See Annappareddy, 996 F.3d at 137 (quoting
Farah, 926 F.3d at 502).
Defendants argue that Agent Hicks had an alternative remedy available through the internal
Secret Service investigation of the incident. Mot. Mem. 14-15. But, as Agent Hicks points out,
an internal investigation that confirmed he “did nothing wrong during the encounter with
Defendants is not an alternative remedial action that provides recourse against Defendants for their
unlawful conduct.” Resp. 14. Defendants cite no authority to suggest that any alternative remedy
existed.
In sum, I do not find that this case differs in a meaningful way from previous Bivens cases,
and I shall DENY Defendants’ request for judgment as a matter of law on the basis that Agent
Hicks’s claim constitutes an improper extension of the remedy set forth in Bivens.
III. Indemnification Evidence in Rebuttal Closing
Defendants also move for a new trial, pursuant to Federal Rule of Civil Procedure 59, based

on their assertion that “impermissible indemnification evidence [was] introduced during Plaintiff’s
rebuttal closing argument.” Mot. ¶ 3. A party may challenge a jury verdict under Rule 59, but it
is an “extraordinary remedy which should be used sparingly.” Pacific Ins. Co. v. American Nat.
Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998). Fed. R. Civ. P. 59(a)(1)(A) provides that “[t]he
court may, on motion, grant a new trial on all or some of the issues—and to any party— . . . for
any reason for which a new trial has heretofore been granted in an action at law in federal court.”
Whether to grant a new trial “rests within the sound discretion of the trial court but such discretion
must not be arbitrarily exercised.” City of Richmond v. Atl. Co., 273 F.2d 902, 916 (4th Cir. 1960);
see Atkinson Warehousing & Distrb., Inc. v. Ecolab, Inc., 115 F. Supp. 2d 544, 546 (D. Md. 2000),
aff’d, 15 F. App’x 160 (4th Cir. Aug. 9, 2001).

The Court must “‘grant a new trial[ ] if . . . (1) the verdict is against the clear weight of the
evidence, or (2) is based upon evidence which is false, or (3) will result in a miscarriage of justice,
even though there may be substantial evidence which would prevent the direction of a verdict.’”
Knussman v. Maryland, 272 F.3d 625, 639 (4th Cir. 2001) (quoting Atlas Food Sys. & Serv., Inc.
v. Crane Nat’l Vendors, Inc., 99 F.3d 587, 594 (4th Cir. 1996)). Unlike a motion under Rule 50,
when considering a motion for a new trial under Rule 59, “a trial judge may weigh the evidence
and consider the credibility of the witnesses.” Poynter by Poynter v. Ratcliff, 874 F.2d 219, 223
(4th Cir. 1989); see also McCollum v. McDaniel, 136 F. Supp. 2d 472, 475 (D. Md. 2001). An
error is insufficient cause for a new trial unless the error caused prejudice. See Fed. R. Civ. P. 61
(“Unless justice requires otherwise, no error in admitting or excluding evidence—or any other
error by the court or a party—is ground for granting a new trial . . . . At every stage of the
proceeding, the court must disregard all errors and defects that do not affect any party’s substantial
rights.”); DePaoli v. Vacation Sales Assocs., L.L.C., No. Civ. A. 2:04CV635, 2006 WL 1117799,

at *10 (E.D. Va. 2006) (“[I]t is only errors that cause substantial harm to the moving party that
justify a new trial, and errors that are not prejudicial do not necessitate a new trial.”), aff’d with
modification of monetary award, 489 F.3d 615 (4th Cir. 2007).
I shall begin this analysis with a review of the relevant events that occurred during the
trial’s closing arguments, beginning with Defendants’ closing on July 8, 2021, after the jury had
been instructed, and Plaintiff’s counsel had finished her closing argument.9 Defense counsel began
with a description of how Officer Ferreyra was on his way home at the end of his shift and, seeing
a car on the side of the road, he stopped. Tr. 97:8 – 98:2, July 8, 2021, ECF No. 160.
He approaches the car and what does he ultimately get? He
gets this. He gets a federal lawsuit where Agent Hicks ultimately is
seeking to put a vacuum cleaner up to his bank account.
(Pause )
[Defense counsel]: He gets a federal lawsuit seeking to have a
vacuum cleaner put on his bank account to award damages that they
don’t even have the guts to put a number on. That’s what he gets
for doing his job.
Id. at 98:3-11. Defense counsel then described Officer Phillips pulling over a car that was
swerving:
What does he get for it? The same thing as Officer Ferreyra, a
federal lawsuit seeking unspecified damages.

9 Portions of the transcript are italicized for emphasis.
I mean, why can’t a person come up and have the guts to say,
this is how much money I want? I suggest to you the reason is
because their damage calculations, and we’re going to get into that
a lot in a few minutes, are so messed up that they can’t even put a
number on it. These is -- this was not a lawsuit against the United
States. It’s not a lawsuit against the United States Park Police. This
is a lawsuit, personally, against these two officers.
Id. at 98:23 – 99:9.
Defense counsel continued to describe the Defendants’ version of the events of July 2015.
And all he did was say, I want a supervisor. For that they want
damages. To have the nerve to say, I want a supervisor. Are you
[kidding] me? Come on, give him a half million bucks for asking for
a supervisor. Heavens to Betsy.
. . . .
But think about this: They talk about missing the motorcade.
What they’re doing is they’re saying, they want you to award
unspecified damages against these men personally because it took
too long for Sergeant Wallace to get to the scene. That’s really what
it is.
Id. at 111:5-9, 111:24 – 112:2.
Now, [Plaintiff’s counsel] talks a lot about -- you know, again, the
plaintiff doesn’t have temerity to ask -- to put a number on anything.
And I sat there, I just sat there waiting through the whole case, huh,
let’s hear some damage, man.
They didn’t violate his rights, but I still want to know what
their theory of damages is. Go ahead, tell us. I sat there waiting
patiently. What’s your theory about damages? And I even waited
here today to figure out what it is. And I still don’t know.
So isn’t this great. You put two people at risk with their
personal bank accounts. This is not a government lawsuit. You put
two people’s families at risk to a back computer – bank accounts
and they don’t ask you for money or a dollar amount to give you any
kind of guidepost as to how to parse things out. Seriously? That’s
what we’re doing here. Just come up with it, ladies and gentlemen.
You can figure this out. Come up with it, a significant amount.
Id. at 115:23 – 116:14.
After Defense counsel finished his closing, court recessed prior to Plaintiff’s rebuttal
closing. Id. at 125-26. Before bringing the jury back in, Plaintiff’s counsel raised an issue about
Defense counsel’s statements indicating that Defendants were personally liable. Id. at 126.
I would never have raised this in my initial opening, but I
think defense counsel opened the door to it. I have their
interrogatory response where they acknowledge that the U.S.
Government will cover any liability held against these defendants as
long as they were acting within the scope of their employment
during the pertinent time. So I think it was inappropriate for defense
counsel to suggest to the jury that these defendants were somehow -
- their families are at risk, I think, is the argument made by a
personal judgment. He said it multiple times, which is not accurate
and so I want to say something to the jury about indemnification and
that a judgment would not come out of their pockets.
Id. at 126:21 – 127-7. Defense counsel argued that Defendants “are not automatically indemnified
at all and that’s up to the U.S. Government to do that after they request it.” Id. at 127:11-13.
Recognizing that it was also not automatic that Defendants would pay out of their own pocket, I
stated:
And so, that door has been opened and I’m going to let plaintiffs
have an opportunity to address by, at least, saying that -- whatever
the interrogatory answer is the interrogatory answer, so I’m going to
allow that to be read in because I think that it does leave an
impression with them.
It also invokes sympathy in a way that’s inconsistent with
the way instructions were, so I think the door has been opened and
I think that the manner of doing that makes it very succinct, because
the interrogatory answers address that specifically. And whatever
the answer is is the answer that’s given by, so I’m going to allow it.
Id. at 127:17 – 128:2. Defendants lodged no objection. Plaintiff’s counsel then gave her rebuttal
closing and responded to various points made by Defense counsel, including:
Finally, I want to respond to defendants’ claim that Agent
Hicks doesn’t have any damages, which is just not true. First, there’s
a process in a lawsuit called discovery where defendants and parties
have to provide sworn responses to the other side’s questions. And
there was a question about who would cover the judgment in this
case. Defendants are not personally covering the judgments in this
case. Their families or whatever defense counsel said are not at risk.
This is not a vacuum cleaner to their personal bank accounts. That
statement was wrong.
[Defense counsel]: I object to that, Your Honor.
THE COURT: Why don’t you read the interrogatory and the
answer?
[Defense counsel]: You –
THE COURT: No, I’m not going to be hearing it. We’ll have the
interrogatory and the answer, and the jury can draw the inferences
from it that they want draw.
[Plaintiff’s counsel]: The question is, “If any person or entity may
be liable to satisfy all or part of a possible judgment in this action or
to indemnify or reimburse for payments made to satisfy any
judgment in this action, describe the terms of any such agreement or
arrangement.”
And the sworn response was, “The U.S. Government will
cover any liability held against Officer Ferreyra and Officer Phillips
as long as he was acting within the scope of his employment during
the pertinent times.” And he certainly was, because he was on duty,
both of these officers, as U.S. Park Police officers.
Id. at 131:3 – 132:5.
After the jury began deliberations, a question was submitted to the Court: “If we award any
damages, will defendants be paying directly or will the government be paying?” Id. at 136-24 –
135:4. After sharing the jury’s question with counsel, in the absence of the jury, I suggested the
following:
Now, I’m not inclined to do more than just simply reiterate
what two things they’ve already been told. Number one is, they
have been told that it is agreed that the defendants were acting under
color of state law. So that’s one thing that they know. And we had
the interrogatory answer that was read to them, and so they have that
information. They have been told that information.
I’m not going to add another instruction. I’m not inclined to
add another instruction, because I think that we have to tell them
that the only information they have, they’ve already been provided
and they have to make the best choice they can based upon that.
Id. at 135:5-16. The parties responded:
[Plaintiff’s counsel]: That approach sounds good to us.
[Defense counsel]: We agree, Your Honor.
Id. at 135:18-19. Before bringing in the jury, I repeated the approach to counsel.
THE COURT: All right. Now, do we -- I want to – I want to refer
to the instruction on -- under color of state law, that they were acting
under color of state law, refer to the number and I want to -- I want
to -- we can either just say, you have -- you had the interrogatory
answer read to you and that information is already before you.
Based upon those two things that will provide you with all the
information that we can give to you about your question. Is that --
that’s the approach I’m suggesting. No problem with that from you
all.
Id. at 135:20 – 136:4. Neither party objected. I then brought the jury in and instructed them as
follows:
Ladies and gentlemen, the question that we have that was
provided to us this afternoon states, “If we award any damages, will
the defendant be paying directly or will the government be paying?”
What I want to -- what I can provide to you in response to
your question is, is that the information that you have available to
you to decide the case, you have already received and it’s now -- the
evidence is closed and we cannot give you new additional
information you have not already received.
There are two areas that you have already heard that can
provide you with information that addresses the question you asked.
The first is Jury Instruction Number 23, which is that there was an
agreement, because Officers Ferreyra and Phillips were officers of
the United States Park Police at time of events, they were acting
under color of law. That has been established.
So, that instruction you are not to single out as separate, apart
from all the others. You have to consider that in addition to the
everything else.
And the second piece of information you have already
received from which you can do the best you can to move forward
on this point is the interrogatory answer that [Plaintiff’s counsel]
read to you during her rebuttal where the interrogatory question
asked the question that touches upon this issue and the response that
was given. That information with this interrogatory – with this Jury
Instruction 23 and all the other ones considered together should
provide you with the information that we are allowed to provide you
on that question, all right.
And now, we’ll let you go on back and continue on with your
deliberations
Id. at 136:16 – 137:21. The jury asked no other questions.
Defendants now assert that allowing the jury to receive evidence of indemnification,
especially with no curative instruction, was prejudicial error. Mot. Mem. 15. Defendants also
assert that the interrogatory answer that was read to the jury was incomplete because it was based
on Defendants’ counsel’s understanding and not a statement made by Defendants. Mot. Mem. 17
n.8. As Plaintiff correctly notes, however, this issue is a self-inflicted wound, as it was the
Defendants themselves who opened the door during their closing argument by making multiple
highly-charged emotional remarks about Defendants’ bank accounts and families being put at risk
for paying a damages award, clearly seeking to suggest to the jury—without any supporting
evidence in the record—that the Defendants would be personally responsible to pay any judgment
rendered against them, which was untrue, and was a clear appeal to the jury for sympathy to the
Defendants, contrary to Jury Instruction No. 9, which cautioned against letting sympathy for either
party rule their verdict. See Resp. 15. And as Defendants themselves argued, “[t]he remarks of
counsel were required to be confined to the evidence admitted in the case and reasonable inferences
drawn therefrom.” Ayoub v. Spencer, 550 F.2d 164, 170 (3d Cir. 1977). Defendants’ counsel’s
behavior warranted a response.
In a trial, if a defendant offers testimony of an inability to pay damages, a plaintiff will be
permitted to introduce indemnification evidence. See Jones v. Allen, Civil Action No. PX–15–
1173, 2016 WL 9443772, at *8 (D. Md. 2016) (citing Lawson v. Trowbridge, 153 F.3d 368, 379-
80 (7th Cir. 1998); Christmas v. City of Chicago, 691 F. Supp. 2d 811, 819 (N.D. Ill. 2010)). In
Lawson, the defendants introduced evidence of their inability to pay, but the trial court would not

permit the introduction of indemnification evidence in response. 153 F.3d at 379. The appellate
court ruled post-trial that a new trial on damages (not liability) was required because the defendants
had “opened the door concerning who likely would pay any judgment against them, and the district
court abused its discretion in not allowing [plaintiff] to rebut by telling the jury who likely would
pay.” Id. at 380. Of course, the situation that arose here is different because no evidence was
introduced during trial, but rather Defendants raised the issue—not once, but several times—
during closing arguments after the close of evidence. However, the principle remains relevant—
a wrong impression left with the jury should be cured if possible, even by evidence that would not
have been permitted under the general rule. Here, the only opportunity for any cure was through
either a curative instruction10 by the Court or in Plaintiff’s rebuttal as requested.

Neither party asked for a curative instruction by the Court. Plaintiff proposed the reading
of the interrogatory answer as part of the rebuttal closing. Although Defendants objected, they did
not offer an alternative cure for the impression they had left with the jury, nor did they ask for any
additional instruction in response to the reading. In my discretion, I determined that reading
Defendants’ own words to the jury was an appropriate response. The interrogatory answer was
not provided to the jury as evidence and was not repeated in response to the jury’s question.

10 The Fourth Circuit “has concluded that curative instructions eliminate prejudice from improper closing
arguments . . . .” United States v. Benson, 957 F.3d 218, 235 (4th Cir. 2020).
Defendants note that the introductory sentence was not included in the reading, but they
did not object at the time nor request that it be clarified. The inclusion of the sentence also would
not have changed the essential substance of the reading. Finally, Defendants also note the post-
trial confirmation from the U.S. Attorney’s Office that indemnification is not guaranteed, but
Plaintiff’s counsel told the jury that “the U.S. Government will cover any liability held against

these defendants . . . .” Reply 1-2. These were Defendants’ own words that Plaintiff’s counsel
read to the jury. Also, the confirmation from the U.S. Attorney’s Office was not new information;
Defendants argued at the time that Plaintiff proposed reading the interrogatory answer that
indemnification was not automatic. Neither was it automatic that Defendants would have to pay
personally, which is what Defendants sought to have the jury believe in their closing argument.
The jurors were given balancing information, and it was left in their capable hands to weigh the
arguments and return a verdict.
Under the circumstances, I am not persuaded that the indemnification evidence read to the
jury during Plaintiff’s rebuttal argument to counter Defendants’ improper arguments on damages

resulted in prejudice to the Defendants or a miscarriage of justice. Therefore, I shall not exercise
my discretion to grant a new trial on damages.
IV. Excessive Damages
Finally, Defendants contend that the damages award was excessive and unsupported by the
evidence. Mot. Mem. 21. Whether a jury award is excessive is a question of law. Konkel v. Bob
Evans Farms, Inc., 165 F.3d 275, 280 (4th Cir. 1999). If the court finds that a jury award is
excessive, it may “grant a new trial nisi remittitur, which gives the plaintiff the option of accepting
the remittitur or of submitting to a new trial.” Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 305
n.2 (4th Cir. 1998). Under the process of remittitur, the Court orders a new trial unless the plaintiff
accepts a reduced damages award. Atlas, 99 F.3d at 593.
“[J]ury determinations of factual matters such as . . . the amount of compensatory damages
will be reviewed by determining whether the jury’s verdict is against the weight of the evidence
or based on evidence which is false.” Id. at 594. The court considers the “miscarriage of justice”

prong when a defendant challenges the amount of punitive damages awarded, because “[t]he jury’s
determination of the amount of punitive damages . . . is not a factual determination . . . but is,
rather, an almost unconstrained judgment or policy choice about the severity of the penalty to be
imposed.” Id. Although it is based on “the jury’s underlying factual determinations about the
defendant’s conduct[,] . . . the factual record provides no direct foundation for the amount of
punitive damages.” Id. Therefore, “a court cannot generally test the amount of a punitive damage
award against record facts.” Id. Indeed, “policy-related elements—e.g., the likelihood that an
award will deter the defendant or others from engaging in similar conduct—are . . . more
appropriately decided by the trial judge,” whose “unique vantage point and day-to-day experience

with such matters lend expertise and consistency.” Id. I shall address the damages arguments in
turn, first compensatory damages and then punitive damages.
A. Compensatory Damages
Monetary damages are available to Agent Hicks for the humiliation, embarrassment, and
emotional suffering that he experienced as a result of Defendants’ Fourth Amendment violations.
See Davis v. Passman, 442 U.S. 228, 234, 245 (1979) (“Historically, damages have been regarded
as the ordinary remedy for an invasion of personal interests in liberty.” (quoting Bivens, 403 U.S.
at 395)); Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307 (1986) (“[C]ompensatory
damages may include not only out-of-pocket loss and other monetary harms, but also such injuries
as ‘impairment of reputation . . ., personal humiliation, and mental anguish and suffering.’”
(quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974))). However, Defendants contend
that Agent Hicks failed to identify with any specificity how his alleged emotional injuries were
tied causally to the unconstitutional conduct. Mot. Mem. 24. They also argue that there was no
evidence that Agent Hicks sought or received medical attention, nor was there sufficient

corroboration of his emotional distress. Id. at 25.
Discussing damages for deprivation of constitutional rights under § 1983, the Fourth
Circuit stated that compensatory damages “may not be presumed from every constitutional
violation, but must be proven by competent, sufficient evidence.” Price v. City of Charlotte, N.C.,
93 F.3d 1241, 1250 (4th Cir. 1996) (citing Carey v. Piphus, 435 U.S. 247, 262-63 & n. 20 (1978)).
The Price court indicated that sufficient evidence to prove compensatory damages can include
testimony from the plaintiff:
[A] plaintiff’s testimony, standing alone, can support an award of
compensatory damages for emotional distress based on a
constitutional violation; however, the testimony must establish that
the plaintiff suffered demonstrable emotional distress, which must
be sufficiently articulated; neither conclusory statements that the
plaintiff suffered emotional distress nor the mere fact that a
constitutional violation occurred supports an award of
compensatory damages. In marshaling the evidence necessary to
establish emotional distress resulting from a constitutional violation,
Carey instructs us that “genuine injury” is necessary.
93 F.3d at 1254 (quoting Carey, 435 U.S. at 264). Of course, “conclusory statements that the
plaintiff suffered emotional distress” will not suffice. Knussman, 272 F.3d at 640. “The plaintiff
must adduce sufficient evidence ‘that such distress did in fact occur and that its cause was the
constitutional deprivation itself and cannot be attributable to other causes.’” Id. at 639-40 (quoting
Price, 93 F.3d at 1250).
In Knussman, the Fourth Circuit provided a number of factors to which a court may look
to determine whether an award for compensatory damages is excessive. Id. They include:
medical attention resulting from the emotional duress; psychiatric or
psychological treatment; the degree of such mental distress; the
factual context in which the emotional distress developed; evidence
corroborating the testimony of the plaintiff; the nexus between the
conduct of the defendant and the emotional distress; mitigating
circumstances, if any; physical injuries suffered as a result of
emotional distress; and loss of income, if any.
Id. at 640. Agent Hicks credibly testified at trial about the emotional distress he suffered as a result
of Defendants’ Fourth Amendment violations. Although Defendants argue that Agent Hicks’s
trauma was mostly (if not entirely) related to having a gun pointed at him, which was not the
constitutional violation, Agent Hicks’s testimony was not limited to his fearing for his life at the
beginning of the first encounter. He also testified about his humiliation at being detained and
feeling belittled by the disparaging behavior (cursing, sneering, verbal assaults), as well as feeling
upset and scared by the ordeal. Tr. 85 – 92, July 6, 2021, ECF No. 158. He testified that he felt
alone and helpless, being the only African-American male surrounded by all Caucasian USPP
officers and not knowing what might yet happen, especially once the motorcade passed by. Id.
He was embarrassed by his co-workers seeing him held on the side of the road when the motorcade
passed by without being able to join it. Id. He explained that his work was a significant source of
personal pride, and this was the first time in his 20-year career that he’d been unable to complete
a work assignment. Id. Agent Hicks testified that he became emotionally upset by the events that
day and that he later broke down and cried; he’d only ever cried before when his grandmother and
father passed away. Id. He also stated that he was scarred by the two encounters and the emotional
impact was still affecting him and impacting his relationships with his co-workers and family. Id.
Agent Hicks described how the incidents made him fear for his family, especially given how easily
a situation could escalate with tragic consequences should his son or daughter be stopped by the
police. Id. He testified that his sleep was negatively affected, and that he still wakes up reliving
the experience in vivid detail. Id. And every time there’s a media event of police misconduct, he
relives the events of that day. Id. Further, Agent Hicks testified that he sought psychological
counseling for the first time in his life, although because of his work travel, he only attended two

sessions. Id.
Additionally, Agent Miltom Wilson11 credibly testified about Agent Hicks’s emotional
injuries, having observed Agent Hicks about six weeks after the incidents looking distressed and
subdued, which was inconsistent with prior encounters with Agent Hicks. Id. at 246 – 258. On
being asked what was wrong, Agent Hicks related what had occurred in his encounters with the
park police. Id. Agent Wilson followed up with Agent Hicks afterwards over the telephone and in
person and noted further decline in his demeanor and emotional state. Id. The jury found Agent
Hicks’s testimony and Agent Wilson’s corroborating testimony credible, as do I. There is
sufficient evidence of genuine injury caused by the Plaintiffs’ constitutional violations to support

an award of compensatory damages. See Carey, 435 U.S. at 264 n.20 (“Although essentially
subjective, genuine injury in this respect may be evidenced by one’s conduct and observed by
others.”).
Damages for emotional distress, humiliation, and embarrassment are “perhaps the most
difficult damages to quantify. . . unique to each plaintiff.” In re Air Crash Disaster at Charlotte,
N.C. on July 2, 1994, 982 F. Supp. 1115, 1129 (D.S.C. 1997). There was no requirement for Agent
Hicks to place a number on his suffering but rather leave it to the jury to quantify the harm in
economic terms. See Merriweather v. Family Dollar Stores of Ind., Inc., 103 F.3d 576, 581 (7th

11 Currently, Deputy Assistant Director Wilson but Agent Wilson at the time of the events being testified about.
Cir. 1996) (“We are not convinced that psychological injuries are readily amendable [sic] to such
quantification, and forcing such a burden of proof upon a plaintiff would make compensatory
damages nigh unto impossible to recover.”). The jury was instructed to “determine an amount of
money that is fair compensation for Agent Hicks’s damages.” Final Jury Instruction No. 33, ECF
No. 148. The jury was also instructed:

You may award compensatory damages only for injuries that Agent
Hicks proves by a preponderance of the evidence were caused by
the Officers Ferreyra’s and/or Phillips’s allegedly wrongful conduct.
The damages that you award must be fair compensation—no
more and no less.
You may award compensatory damages for any pain,
suffering, or mental anguish that the Agent Hicks experienced as a
consequence of Officer Ferreyra’s and/or Phillips’s actions. No
evidence of the monetary value of such intangible things as pain and
suffering has been, or need be, introduced into evidence. There is no
exact standard for fixing the monetary compensation to be awarded
for these elements of damage. Any award you make should be fair
in light of the evidence presented at the trial.
In determining the amount of any damages you decide to
award, you should be guided by common sense. You must use sound
judgment in fixing an award of money damages, drawing reasonable
inferences from the facts in evidence. You may not award money
damages based on sympathy, speculation, or guesswork.
Id. The jury was also instructed that it could “award nominal damages if you conclude that the
only injury that a plaintiff suffered was the deprivation of his constitutional rights, without any
resulting physical, emotional or financial damage.” Id. at 34. According to the Fourth Circuit, I
can assume that the jurors followed their instructions. Stamathis v. Flying J, Inc., 389 F.3d 429,
442 (4th Cir. 2004) (“A jury is presumed to follow the instructions of the court.”).
I do not find that the jury’s award of $80,000 against Officer Ferreyra, and $125,000 against
Officer Phillips, for a total of $205,000 in compensatory damages is against the weight of the
evidence. Although sizeable, the award is not beyond the outermost award that could be sustained
for the psychological harm suffered by Agent Hicks under these circumstances. And it appears
that the jury considered whether Officer Phillips caused additional mental anguish by stopping
Agent Hicks within minutes of him being released from the first encounter, no doubt experiencing
relief at being finally freed, only to be pulled over by Officer Phillips and further detained without

cause. Therefore, I shall DENY Defendants’ request for remittitur of the compensatory damages
awarded.
B. Punitive Damages
Punitive damages may be awarded in a Bivens suit. Carlson, 446 U.S. at 21 (quoting
Bivens, 403 U.S. at 397). In addition to punishing the wrongdoer, punitive damages serve as a
deterrent “and are especially appropriate to redress the violation by a Government official of a
citizen’s constitutional rights.” Id. If an award is unconstitutionally excessive, it is the duty of the
court to set it aside. Cline, 144 F.3d at 306. Here, the jury found that Officers Ferreyra and Phillips
“acted with malice or reckless indifference” to Agent Hicks’s constitutional rights and awarded
punitive damages of $225,000 against Officer Ferreyra and $300,000 against Officer Phillips. Jury

Verdict 2, 3.12
When, as here, a punitive damages award is challenged, the court considers three factors:
“(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the
actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the
difference between the punitive damages awarded by the jury and the civil penalties authorized or
imposed in comparable cases.” Wallace v. Poulos, 861 F. Supp. 2d 587, 603 (D. Md. 2012)

12 The jury was instructed that they should consider the degree to which the Defendants “should be punished
for their wrongful conduct” as well as the degree to which an award “will deter Defendants or persons like them from
committing wrongful acts in the future.” Jury Instruction No. 35.
(quoting State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418 (2003)). This analysis
“ensure[s] that defendants have fair notice about the potential penalty they face for engaging in
prohibited conduct”; without this notice, “the punitive damages award violates due process.” Id.
at 604.
Under the first factor, the court considers

[W]hether: the harm caused was physical as opposed to economic;
the tortious conduct evinced an indifference to or a reckless
disregard of the health or safety of others; the target of the conduct
had financial vulnerability; the conduct involved repeated actions or
was an isolated incident; and the harm was the result of intentional
malice, trickery, or deceit, or mere accident.
Id. (quoting State Farm, 538 U.S. at 419). Defendants argue that Agent Hicks was not physically
harmed, was not targeted as being financially vulnerable, and that his injuries were the result of an
isolated incident. Mot. Mem. 29. They also argue that there was no evidence of malice or of a
reckless disregard for anyone’s health or safety. Id. However, the jury unanimously concluded
that Defendants’ actions were not reasonably necessary and that they acted with malice or reckless
disregard. Jury Verdict 2, 3, 5.
Sufficient evidence supports the finding that Officer Ferreyra decided to detain Agent
Hicks unnecessarily and deliberately cause him to miss his motorcade assignment with no probable
cause or reason to investigate, knowing that Agent Hicks was an on-duty secret service agent.
Officer Ferreyra did not consider the potential risk of danger to the motorcade’s protectee due to
preventing Agent Hicks from performing his duty. This was followed by abusive language,
belittling and demeaning remarks, and spiteful, harassing behavior by both Defendants. And to
add insult to injury, just moments after he was finally allowed to go, Agent Hicks was stopped
again unnecessarily by Officer Phillips, who demanded his license and registration despite
knowing who Agent Hicks was, and the demeaning behavior continued. The harm was not
economic, nor was it physical, but the jury found that Agent Hicks was emotionally damaged by
Defendants’ actions. Potential harm from the Defendants’ actions must be also considered; for
example, had Agent Hicks not stayed calm and controlled during the ordeal, these trying events
could have led to a tragic outcome. See TXO Prod. Corp. v. Alliance Resources Corp., 509 U.S.
443, 460-61 (1993) (“It is appropriate to consider the magnitude of the potential harm that the

defendant’s conduct would have caused to its intended victim if the wrongful plan had succeeded,
as well as the possible harm to other victims that might have resulted if similar future behavior
were not deterred.”). Causing emotional harm with malice is sufficient to support an award of
punitive damages, and certainly, the type of behavior found by the jury is appropriate for both
punishment and deterrence.
The second and third factors require me to review the ratio of compensatory to punitive
damages, and the amounts of comparable verdicts. Wallace, 861 F. Supp. 2d at 603. As noted,
the jury awarded Agent Hicks a combined punitive damages award of $525,000, which is less than
three times the combined compensatory damages award of $205,000.13 The Supreme Court has

affirmed as constitutional punitive damages awards “more than 4 times the amount of
compensatory damages.” Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23 (1991); see also State
Farm, 538 U.S. at 425 (“Single-digit multipliers are more likely to comport with due process,
while still achieving the State’s goals of deterrence and retribution.”); BMW of North America,
Inc. v. Gore, 517 U.S. 559, 582 (1996) (“A higher ratio may also be justified in cases in which the
injury is hard to detect or the monetary value of noneconomic harm might have been difficult to
determine.”). Of course, the constitutional line is not “marked by a simple mathematical formula.”

13 I note that each individual Defendant’s ratios of punitive damages to compensatory damages are also less
than 3:1.
Gore, 517 U.S. at 582. Under the circumstances, punitive damages less than three times the
amount of compensatory damages is in line with Supreme Court precedent.
Neither Defendants nor Plaintiff provide cases that can truly be considered comparable.
Defendants cite Butler v. Windsor, in which I reduced a punitive award that was three times the
amount of compensatory damages. Mot. Mem. 29-30 (citing Butler v. Windsor, 143 F. Supp. 3d

332 (2015)). In Butler, however, I reduced the award because it was duplicative, not because it
was excessive. See 143 F. Supp. 3d at 341-42 (reducing the punitive damages award of $50,000
on the state law claims to zero, but the $100,000 punitive damages award on the federal claim and
$50,845 compensatory damages award were found reasonable). In that case, I also analyzed
numerous cases in the District of Maryland and the Fourth Circuit and found a “reasonableness
range of $10,000 to $125,000 in punitive damages” per defendant in those cases dating from 2001
to 2014. Id. at 341. Under the circumstances here, I find that the jury’s award of punitive damages
is not unconstitutionally excessive and does not “result in a miscarriage of justice,” Knussman,
272 F.3d at 639, and I shall DENY Defendants’ request for a new trial nisi remittitur.

CONCLUSION
For the foregoing reasons, Defendants’ motion, ECF No. 165, is DENIED. Judgment shall
be entered by separate order.

Dated: January 28, 2022.
/S/ _
Paul W. Grimm
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10206423. Public record. Not legal advice.