Donald Snowden v. Jeremy Henning

In the

United States Court of Appeals

for the Seventh Circuit

____________________

No. 21-1463

DONALD V. SNOWDEN,

Plaintiff-Appellant,

v.

JEREMY HENNING,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 3:19-cv-01322-JPG — J. Phil Gilbert, Judge.

____________________

ARGUED NOVEMBER 2, 2021 — DECIDED JUNE 27, 2023

____________________

Before SYKES, Chief Judge, and FLAUM and JACKSON-

AKIWUMI, Circuit Judges.

SYKES, Chief Judge. In Bivens v. Six Unknown Named Agents

of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the

Supreme Court recognized an implied damages remedy

against federal officers for certain constitutional violations.

Bivens involved a claim for damages against federal narcot-

ics agents for alleged Fourth Amendment violations stem-

ming from a warrantless search, arrest, and unreasonable

2 No. 21-1463

use of force against the plaintiff in his home. The Court later

extended the Bivens remedy to two additional contexts: a

claim against a member of Congress under the Fifth

Amendment for workplace sex discrimination, Davis v.

Passman, 442 U.S. 228 (1979), and a claim against federal

prison officials under the Eighth Amendment for failure to

provide adequate medical care, Carlson v. Green, 446 U.S. 14

(1980). Since then, however, the Court has consistently

refused to authorize new Bivens claims. Today, extending

the Bivens cause of action is a “‘disfavored’ judicial activity.”

Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 675 (2009)).

In recent years, the Court has emphasized that creating

new causes of action is the prerogative of Congress, not the

federal courts. To guard against encroachments on legisla-

tive authority, the Court has fashioned a two-step frame-

work for evaluating Bivens claims. The first step considers

whether the claim arises in a new context. The context is new

if the claim is different in a “meaningful way” from an

earlier Bivens claim authorized by the Court. Id. at 139. If the

context is not new, then the claim may proceed. But if the

context is new, then the analysis proceeds to the second step,

which asks whether “special factors” counsel against author-

izing a Bivens remedy. Id. at 136.

This case requires us to survey the evolving Bivens land-

scape. While staying at a hotel, Donald Snowden received a

call from the front-desk clerk asking him to visit the lobby to

pay for the room. Special Agent Jeremy Henning with the

Drug Enforcement Administration (“DEA”) awaited

Snowden’s arrival; a warrant had been issued for his arrest.

According to Snowden, Agent Henning pushed him to the

No. 21-1463 3

ground and—unprovoked—punched him several times in

the face. Snowden suffered two black eyes and a left orbital

fracture.

Snowden sued Agent Henning, bringing a Fourth

Amendment Bivens claim for use of excessive force during

the arrest and a state-law claim for battery. The district judge

dismissed the Bivens claim, concluding that it presents a new

context and that special factors counseled against extending

Bivens here. The judge dismissed the state-law battery claim

without prejudice, and Snowden appealed.

We resolve this case at step one of the Bivens inquiry.

Snowden’s claim does not arise in a new context. While the

Supreme Court has strictly limited the reach of Bivens, it has

left the door open for at least some claims to proceed—

provided, however, that the claim is not meaningfully

different from Bivens itself (or one of the other two cases in

which the Court recognized an implied remedy). A differ-

ence is “meaningful” when it involves a factual distinction

or new legal issue that might alter the policy balance that

initially justified the implied damages remedies in the Bivens

trilogy.

If the case involves new or different considerations from

an already-recognized Bivens action, then the inquiry moves

to step two and separation-of-powers considerations are

decisive. As the doctrine now stands, under the “special

factors” inquiry, a court cannot extend Bivens to a new

context if “there is any rational reason (even one) to think

that Congress is better suited to weigh the costs and benefits

of allowing a damages action to proceed.” Egbert v. Boule,

142 S. Ct. 1793, 1805 (2022) (internal quotation marks omit-

4 No. 21-1463

ted). Few (if any) new claims will survive this test. After all,

creating new causes of action is primarily a legislative task.

Still, some claims may proceed under a straightforward

application of Bivens itself. Snowden’s case presents such a

claim. We therefore reverse.

I. Background

We recount the facts as alleged in Snowden’s complaint,

accepting the well-pleaded allegations as true at this stage of

the litigation. Engel v. Buchan, 710 F.3d 698, 699–700 (7th Cir.

2013).

On September 12, 2019, Snowden was staying at the

Quality Inn in Carbondale, Illinois. He received a call from

the front-desk clerk, who asked him to visit the lobby to pay

for the room. The clerk knew that Agent Henning was

present to arrest Snowden. An arrest warrant had been

issued after a federal grand jury indicted Snowden for

methamphetamine distribution. 1

When Snowden arrived in the lobby, Agent Henning

rushed at him, pushing him into a door and onto the

ground. Snowden did not resist, yet Henning punched him

several times in the face. Snowden suffered two black eyes

and a fractured left eye socket during the arrest. 2

1 AgentHenning attached the arrest warrant to his motion to dismiss. We

may take judicial notice of matters of public record when reviewing a

complaint. Fosnight v. Jones, 41 F.4th 916, 922 (7th Cir. 2022).

2 Snowden claims that the U.S. Attorney’s Office has video evidence

confirming his account. He sought production of the video, but the judge

denied the request as premature because the case had not yet proceeded

to discovery on the merits.

No. 21-1463 5

Several months later while in pretrial detention on the

methamphetamine charge, Snowden filed a pro se complaint

against Agent Henning alleging a Fourth Amendment claim

for “grossly excessive force” and a battery claim under

Illinois law. Snowden also named the DEA, Quality Inn, and

the front-desk clerk as defendants. The claims against the

DEA targeted the agency’s training and supervision practic-

es, and the claims against Quality Inn and the front-desk

clerk alleged that the hotel and its staff obstructed justice.

Because Snowden filed a civil action against the govern-

ment while in federal pretrial detention, the judge screened

the pleading under the Prison Litigation Reform Act

(“PLRA”). See 28 U.S.C. § 1915A. He construed the com-

plaint to allege a Fourth Amendment Bivens claim against

Henning for use of excessive force during Snowden’s arrest.

The judge allowed that claim to move forward, and he also

exercised supplemental jurisdiction over the state-law

battery claim against Henning. He dismissed the claims

against the DEA, Quality Inn, and the front-desk clerk.

Agent Henning moved to dismiss the Bivens claim for

failure to state a claim. He argued that this case presents a

new context and that special factors counseled against

extending Bivens. Henning also moved to convert the battery

claim to one under the Federal Tort Claims Act (“FTCA” or

“the Act”) and substitute the United States as the defendant.

He explained that the FTCA provides the exclusive remedy

for injuries stemming from a federal employee’s violation of

state law while acting within the scope of his employment

and that the United States is the only proper defendant

under the Act. The government certified that Agent Henning

6 No. 21-1463

acted within the scope of his employment during the events

in question.

Snowden opposed both motions. In a pro se filing, he ar-

gued that the constitutional claim, which was based on

allegations of unreasonable force during an arrest, was not

meaningfully different from Bivens. He did not explain his

opposition to the motion to convert the battery claim to one

under the FTCA and substitute the United States as the

defendant.

The judge dismissed the Bivens claim against Agent

Henning. He identified certain factual distinctions between

Snowden’s case and Bivens, including the location of the

arrest, the presence of an arrest warrant, and the number of

officers involved in the incident. He also identified what he

characterized as a legal difference between the Fourth

Amendment rights at issue in Snowden’s case and in Bivens.

He described Bivens as “primarily” involving allegations

concerning the “rights of privacy” implicated in an unlawful

warrantless home entry, arrest, and search, while Snowden

alleged a violation of his “right to be free from excessive

force incident to an otherwise lawful arrest.” These differ-

ences led the judge to conclude that Snowden’s case presents

a new Bivens context. The judge then held that special factors

weighed against recognizing a Bivens claim here—namely,

the availability of an alternative remedy under the FTCA

and the absence of a damages remedy against federal offic-

ers in the FTCA or PLRA.

Finally, the judge declined to substitute the United States

on the battery claim and convert the claim to one under the

FTCA. He explained that Snowden had pursued a Bivens

claim against Agent Henning and should be able to decide

No. 21-1463 7

for himself if he would also like to bring an FTCA claim

against the United States as a substitute for the state-law tort

claim.

With the Bivens claim dismissed, no federal claim re-

mained. The judge relinquished jurisdiction over the battery

claim, dismissing it without prejudice.

II. Discussion

Snowden limits his appeal to the dismissal of his Bivens

claim against Agent Henning. The judge’s other rulings—

dismissing the other defendants at screening and declining

to convert the battery claim to one under the FTCA—are not

at issue here.

The practice of recognizing implied damages remedies

against federal officials for alleged constitutional violations

had a short run at the Supreme Court. In its 1971 decision in

Bivens, the Court authorized a damages remedy for a plain-

tiff who alleged that federal narcotics officers violated his

Fourth Amendment rights by entering and searching his

home without a warrant and arresting him using unreason-

able force. 403 U.S. at 389–90. Nearly a decade later, the

Court recognized an implied damages action against a

member of Congress for workplace sex discrimination in

violation of the Fifth Amendment. Davis, 442 U.S. at 230,

248–49. The following year, the Court extended Bivens again,

approving a cause of action for damages against federal

prison officials for failure to provide adequate medical care

in violation of the Eighth Amendment. Carlson, 446 U.S. at

16, 19.

Carlson marked the end of the line. Since 1980 the Court

has consistently rejected requests to recognize additional

8 No. 21-1463

Bivens claims. See Hernández v. Mesa, 140 S. Ct. 735, 743 (2020)

(citing Supreme Court cases after Carlson that rejected Bivens

claims). And in recent years the Court has made explicit

what had been implicit—“that expanding the Bivens remedy

is now a ‘disfavored’ judicial activity.” Abbasi, 582 U.S. at 135

(quoting Iqbal, 556 U.S. at 675).

Bivens emerged at a time when courts freely implied

causes of action under federal statutes in the name of legisla-

tive purpose. The Court later rejected statutory remedies

created through “judicial mandate,” reinforcing that a cause

of action must be supported by congressional intent ex-

pressed clearly in statutory text. Id. at 133. The Court like-

wise stressed that “it is a significant step under separation-

of-powers principles for a court to determine that it has the

authority, under the judicial power, to create and enforce a

cause of action for damages against federal officials in order

to remedy a constitutional violation.” Id. The Court’s most

recent Bivens case makes the point more emphatically:

“[C]reating a cause of action is a legislative endeavor.”

Egbert, 142 S. Ct. at 1802.

But the Court has stopped short of overruling the Bivens

trilogy. Instead, it has fashioned a two-step framework to

ensure that the judiciary does not further encroach on legis-

lative authority under the banner of Bivens. The first step

asks whether the plaintiff’s case presents “a new Bivens

context.” Id. at 1803 (quoting Abbasi, 582 U.S. at 139). If it

does not, then the plaintiff’s claim may proceed. But if the

claim arises in a new context, then the court must consider

whether “there are ‘special factors’ indicating that the Judi-

ciary is at least arguably less equipped than Congress to

‘weigh the costs and benefits of allowing a damages action

No. 21-1463 9

to proceed.’” Id. (quoting Abbasi, 582 U.S. at 136). “If there is

even a single ‘reason to pause before applying Bivens in a

new context,’ a court may not recognize a Bivens remedy.”

Id. (quoting Hernández, 140 S. Ct. at 743).

We focus here on the first step—whether Snowden’s

Bivens claim arises in a “new context.” A context is “new” if

“the case is different in a meaningful way from previous

Bivens cases” decided by the Supreme Court. Abbasi, 582 U.S.

at 139. The Court has identified some differences that qualify

as “meaningful”:

the rank of the officers involved; the constitu-

tional 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 dis-

ruptive intrusion by the Judiciary into the func-

tioning of other branches; or the presence of

potential special factors that previous Bivens

cases did not consider.

Id. at 140. A context may also be “new” when a “new catego-

ry of defendants” is involved. Hernández, 140 S. Ct. at 743

(quotation marks omitted).

Several cases show these principles in practice. In Abbasi

illegal immigrants who were detained in a special detention

unit in the aftermath of the September 11 terrorist attacks

brought a damages claim against senior Department of

Justice officials and prison wardens for harsh conditions in

the unit. Seeking a remedy under Bivens, they pointed to

10 No. 21-1463

“significant parallels” with Carlson, which had recognized a

cause of action under the Eighth Amendment for inadequate

prison medical care. Abbasi, 582 U.S. at 147. The Court held

that the case represented an extension of Bivens to a new

context, noting that the claim implicated a different constitu-

tional right (the Fifth Amendment vs. the Eighth Amend-

ment), that alternative remedies might have been available,

and that the PLRA suggested that Congress “chose not to

extend the Carlson damages remedy to cases involving other

types of prisoner mistreatment.” Id. at 148–49. These differ-

ences “easily satisfied” the new-context test. Id. at 149.

The Court followed a similar path in Hernández, which

involved a cross-border shooting in which a Border Patrol

agent shot and killed a Mexican teenager who had been

running back and forth across the U.S.–Mexico border.

140 S. Ct. at 739–40. The victim’s parents sued the agent,

relying on Bivens and Davis to support claims under the

Fourth and Fifth Amendments. The Court explained that a

Bivens claim may present 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.” Id. at

743. And “[a] cross-border shooting is by definition an

international incident”—a “world of difference” from the

claims recognized in Bivens and Davis. Id. at 744. That differ-

ence was significant: it raised foreign-relations and border-

security concerns, which risked “disruptive intrusion by the

Judiciary into the functioning of other branches.” Id. (quot-

ing Abbasi, 582 U.S. at 140). The Court held that “multiple

factors” counseled against extending Bivens, all of which

could be “condensed to one concern—respect for the separa-

tion of powers.” Id. at 749.

No. 21-1463 11

Minneci v. Pollard, 565 U.S. 118 (2012), is another example.

Prisoners sued employees of a privately operated federal

prison seeking damages for inadequate medical care in

violation of the Eighth Amendment. The plaintiffs argued

that Carlson governed and authorized their Bivens claim. The

Court responded that the defendants’ status as “personnel

employed by a private firm” was a “critical difference.” Id. at

126. A prisoner could not ordinarily sue a federal employee

for damages in a state-law tort action, but a state-law tort

claim is an available remedy against an employee of a

privately operated prison. The Court added that an earlier

case had foreclosed the argument that a private prison-

management firm should be treated as a “federal agent.” Id.

at 126–27 (citing Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70

& n.4 (2001)). Because the context was new and the plaintiffs

had an adequate remedy at state law, the Court declined to

imply a Bivens remedy. 3 Id. at 131.

3 It’s worth noting that the Court’s Bivens cases do not uniformly adhere

to the two-step framework. Sometimes the Court declines to imply a

Bivens remedy because Congress had already created a remedial scheme.

See, e.g., Bush v. Lucas, 462 U.S. 367, 380–90 (1983). Sometimes it declines

to extend Bivens because of the sensitive domain involved, like the

military. See, e.g., Chappell v. Wallace, 462 U.S. 296, 298–305 (1983). Still

other cases decline to extend Bivens because a new category of defendant

was present. See, e.g., Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 69–74

(2001). Though these cases do not formally follow the two-step frame-

work, they resolve the Bivens question in a functionally similar way.

Minneci is much the same. The Court began by considering whether

Carlson controlled because the plaintiffs brought a Bivens claim based on

prison conditions. Minneci v. Pollard, 565 U.S. 118, 126–27 (2012). Looking

to its precedent, the Court considered whether the case involved a new

context. The Court then evaluated the adequacy of a state-law tort

remedy, which is a special factor that might counsel hesitation in extend-

12 No. 21-1463

The distinctions that proved meaningful in Abbasi,

Hernández, and Minneci are not exclusive. Here Snowden

raises a Fourth Amendment claim, and the threshold ques-

tion for us is whether his case is meaningfully different from

Bivens itself—in the sense meant by the Court’s “new con-

text” caselaw. That a difference must be “meaningful”

suggests that some degree of variation will not preclude a

Bivens remedy. The Court has explicitly recognized this

point: “Some differences, of course, will be so trivial that

they will not suffice to create a new Bivens context.” Abbasi,

582 U.S. at 149.

We understand the Court’s evolving Bivens guidance to

suggest that a difference is “meaningful” if it might alter the

policy balance that initially justified the causes of action

recognized in Bivens, Davis, and Carlson. If a case involves

facts or legal issues that would require reweighing the costs

and benefits of a damages remedy against federal officials,

then the difference is “meaningful” because we risk further

encroachment on the legislative function rather than simply

applying controlling Supreme Court precedent. Viewed

another way, we’re called on to apply a familiar mode of

judicial reasoning to determine if the case before us fits

ing the Bivens remedy. Minneci basically maps onto the two-step frame-

work.

On the other hand, sometimes the Court’s cases do not explicitly ad-

dress the “new context” inquiry because they do not need to—where, for

example, the case raises a claim under a different constitutional provi-

sion (like the First Amendment) or presents an obviously distinct factual

setting (like the military). These cases move straight to the analysis of

special factors to determine whether to authorize a Bivens claim. See, e.g.,

Bush, 462 U.S. at 378–90; Chappell, 462 U.S. at 298–305.

No. 21-1463 13

within the Court’s still-valid—but now quite limited—

precedent, with special solicitude to the separation-of-

powers concerns identified by the Court.

This understanding accords with the cases we’ve just de-

scribed. In Abbasi a damages remedy like the one recognized

in Carlson might not be appropriate because the plaintiffs

invoked a different constitutional right, had alternate reme-

dies, and the PLRA suggested that Congress might not have

wanted to extend Carlson to other prisoner-mistreatment

claims. These differences, though “perhaps small,” suggest-

ed that the factual and legal background had shifted enough

from Carlson to warrant restraint. Id. The same was true in

Hernández. A cross-border shooting implicates foreign-

relations concerns that were not present in the everyday

law-enforcement context of Bivens. That difference readily

indicated that a court might weigh the propriety of an

implied damages remedy differently than in Bivens. Finally,

the presence in Minneci of a new class of defendant, subject

to a state-law tort suit, signaled that the balance struck in

Carlson did not apply. The availability of an adequate state-

law remedy against a class of defendant not covered by the

Court’s Bivens trilogy could suggest that the differences are

sufficiently meaningful to require careful consideration of

separation-of-powers factors that counsel against a Bivens

action.

Note that we speak not in absolute terms but in “mights”

and “coulds” instead. That is because “our watchword is

caution.” Hernández, 140 S. Ct. at 742. If a court finds differ-

ences in a case that could upset a straightforward applica-

tion of Bivens or Davis or Carlson, then the case presents a

new Bivens context and the analysis moves to the “special

14 No. 21-1463

factors” inquiry. This understanding of the new-context

requirement harmonizes the two steps in the Court’s Bivens

framework. In the first step we identify claims that entail

“meaningful” differences from the claims at issue in the

Bivens trilogy—i.e., factual distinctions and legal issues that

might alter the cost–benefit balance that justified an implied

damages remedy in those cases. In the second step we pay

special attention to separation-of-powers concerns, consider-

ing whether “special factors” indicate that Congress is better

equipped in the specific context to assess the costs and

benefits of a damages remedy. An approach that sorts cases

in the heartland of Bivens from those that might introduce

separation-of-powers concerns makes sense because of the

deference owed to Congress, which “is best positioned to

evaluate ‘whether, and the extent to which, monetary and

other liabilities should be imposed upon individual officers

and employees of the Federal Government’ based on consti-

tutional torts.” Id. (quoting Abbasi, 582 U.S. at 134).

The Fourth Circuit has distilled the new-context inquiry

in much the same way. The court explained: “[A] new

context may arise if even one distinguishing fact has the

potential to implicate separation-of-powers considerations.” Tate v.

Harmon, 54 F.4th 839, 846 (4th Cir. 2022) (second emphasis

added). And recent Bivens cases from other circuits also

reflect this approach, finding a new context when there are

separation-of-powers considerations different than those

already present in the Bivens trilogy. See Bulger v. Hurwitz,

62 F.4th 127, 137–38 (4th Cir. 2023) (concluding that the

Bivens claim arose in a new context because the plaintiff’s

claim implicated the Bureau of Prisons’ “organizational

policies, administrative decisions, and economic concerns

inextricably tied to inmate transfer and placement determi-

No. 21-1463 15

nations”); Dyer v. Smith, 56 F.4th 271, 277–78 (4th Cir. 2022)

(new context because TSA officers operate under a different

legal mandate); Tun-Cos v. Perrotte, 922 F.3d 514, 523–25 (4th

Cir. 2019) (new context because immigration enforcement

concerns noncitizens, because of “broad policy concerns,”

and because ICE agents are a “new category of defendants”);

Mejia v. Miller, 61 F.4th 663, 668–69 (9th Cir. 2023) (new

context because “[t]he entire incident occurred on public

lands managed by BLM and the National Park Service, a

place where [the plaintiff] had no expectation of privacy”);

K.O. ex rel. E.O. v. Sessions, No. 20-5255, 2022 WL 3023645, at

*3–4 (D.C. Cir. July 29, 2022) (per curiam) (new context

because the “case arises in the context of immigration deten-

tion” and because the claims “implicate new defendants,”

including “various high-level officials”).

At the other end of the spectrum, a recent Fourth Circuit

decision recognized that a Bivens claim remains viable if it

doesn’t present concerns that might caution against the

application of a preexisting damages remedy. Hicks v.

Ferreyra, 64 F.4th 156, 166–69 (4th Cir. 2023) (concluding that

the Bivens claim did not present a new context because it

involved “not an extension of Bivens so much as a replay of

the same principles of constitutional criminal law prohibit-

ing the unjustified, warrantless seizure of a person” (internal

quotation marks omitted)).

Of course, just last term the Supreme Court emphasized

just how narrow the path is for a Bivens claim to proceed. In

Egbert the Court suggested that the two-step framework

boils down to one question: “whether there is any reason to

think that Congress might be better equipped to create a

damages remedy.” 142 S. Ct. at 1803. Writing on a blank

16 No. 21-1463

slate, we might say that it is never appropriate for a federal

court to create an implied cause of action for damages under

the Constitution. See Abbasi, 582 U.S. at 134 (“[I]t is possible

that the analysis in the Court’s three Bivens cases might have

been different if they were decided today.”). But we operate

within the current state of the doctrine, and the Court has

said that its recent decisions are “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.” Id. Indeed, the

Court has explained that “[t]he settled law of Bivens in th[e]

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.” Id. Because

Bivens remains good law, at least for now, we continue to

apply it.

On these understandings, we can identify no meaningful

difference between Snowden’s case and Bivens to suggest

that he should not be able to pursue this excessive-force

claim. Agent Henning operated under the same legal man-

date as the officers in Bivens—the enforcement of federal

drug laws. He is also the same kind of line-level federal

narcotics officer as the defendant–officers in Bivens. Like

Webster Bivens, Snowden seeks damages for violation of his

rights under the Fourth Amendment; more specifically, both

plaintiffs alleged that officers used unreasonable force in an

arrest. And the legal landscape of excessive-force claims is

well settled, with decades of circuit precedent applying the

Supreme Court’s test announced in Graham v. Connor,

490 U.S. 386 (1989). See, e.g., Doxtator v. O’Brien, 39 F.4th 852,

860–62 (7th Cir. 2022); Brownell v. Figel, 950 F.2d 1285, 1292–

93 (7th Cir. 1991). Officers have clear guidance on the level

of force that is reasonable when arresting a suspect who

No. 21-1463 17

does not resist. See Gonzalez v. City of Elgin, 578 F.3d 526, 539

(7th Cir. 2009) (“An officer’s use of force is unreasonable

from a constitutional point of view only if, judging from the

totality of circumstances at the time of the arrest, the officer

used greater force than was reasonably necessary to make

the arrest.” (internal quotation marks omitted)); Abbott v.

Sangamon County, 705 F.3d 706, 732 (7th Cir. 2013) (conclud-

ing that it had been “well-established in this circuit that

police officers could not use significant force on nonresisting

or passively resisting suspects”).

Nor does allowing a Bivens claim here risk a “disruptive

intrusion” into the “functioning of other branches.” At the

very least, the intrusion is no more disruptive than what

Bivens itself already approved. Finally, Snowden’s claim

implicates no other contextual factor—whether a national

security issue (Hernández), a different constitutional right

coupled with alternative remedies (Abbasi), or a different

class of defendant (Minneci)—that might lead us to move to

the second step of the Bivens inquiry. 4 In short, consideration

4 Agent Henning discusses other factors only when he addresses the

second step of the Bivens analysis, but the factors he identifies also do not

suggest that Snowden’s claim arises in a new context. He points to the

availability of a remedy under the FTCA. However, the statute does not

displace a Bivens claim in the narrow cases where it is available. In

Carlson the Court concluded that “victims of the kind of intentional

wrongdoing alleged in this complaint shall have an action under FTCA

against the United States as well as a Bivens action against the individual

officials alleged to have infringed their constitutional rights.” Carlson v.

Green, 446 U.S. 14, 20 (1980) (emphasis added).

More recently the Court recognized that “Congress made clear that it

was not attempting to abrogate Bivens,” Hernández v. Mesa, 140 S. Ct. 735,

748 n.9 (2020), because it excepted “a civil action … brought for a

violation of the Constitution of the United States” from the FTCA’s

18 No. 21-1463

of the Abbasi factors points to the same conclusion: We do

not risk arrogating a legislative function by allowing

Snowden’s Bivens claim to proceed.

Resisting this conclusion, Agent Henning argues that

Bivens rests on “the right to be free of unreasonable warrant-

less search and detention in one’s own home and arrest in

the absence of probable cause.” He describes Snowden’s

claim as rooted in “the right to be free of excessive force in

the context of a lawful arrest in a public place pursuant to a

warrant issued following a finding of probable cause.” This

argument overlooks that the claim in Bivens specifically

included an allegation that “unreasonable force was em-

ployed in making the arrest.” Bivens, 403 U.S. at 389.

Agent Henning also points to narrow factual differences

to argue that Snowden’s claim presents a new context dis-

tinct from Bivens. Drawing on the district judge’s reasoning,

he highlights that the alleged Fourth Amendment violations

took place in different locations (a hotel lobby here, a home

in Bivens); that he had a warrant (the officers in Bivens did

not); and that he was the only officer involved (six officers

participated in the arrest at issue in Bivens). These distinc-

tions are not sufficient to affect the Bivens inquiry. Hotel or

home, warrant or no warrant—the claims here and in Bivens

stem from run-of-the-mill allegations of excessive force

during an arrest. The number of officers present might prove

relevant to whether the force applied was reasonable, but as

exclusivity provision, 28 U.S.C. § 2679(b)(2)(A). The provision was “not a

license to create a new Bivens remedy in a context [the Court] ha[s] never

before addressed” but “simply left Bivens where it found it.” Hernández,

140 S. Ct. at 748 n.9. This case does not present a new Bivens context, so

the Act does not come into play.

No. 21-1463 19

a separation-of-powers matter, the presence of one officer

rather than six is not meaningful. This case does not involve

a different class of defendant—a new context that indeed

might require more careful consideration. See, e.g., Minneci,

565 U.S. at 126–31; FDIC v. Meyer, 510 U.S. 471, 484–86

(1994). In short, the factual distinctions Henning emphasizes

are of the “trivial” kind that “will not suffice to create a new

Bivens context.” Abbasi, 582 U.S. at 149.

Finally, Agent Henning seeks support in Oliva v. Nivar,

973 F.3d 438 (5th Cir. 2020). But Oliva involved a Bivens

claim based on an allegation of excessive force that occurred

at a security checkpoint in a Veterans Affairs hospital, and

the distinctions there were meaningful. Id. at 440–41. The

case involved a different type of officer with a different law-

enforcement mandate: a VA police officer enforcing hospital

safety (in contrast to narcotics officers carrying out a drug

investigation). The seizure itself occurred in a government

facility, a space that is meaningfully different than a private

home or building for the purpose of a judicially implied

damages remedy. The Fifth Circuit concluded that these

distinctions mattered. The context therefore was new, and

the court held that special factors warranted restraint. Id. at

443–44. The threat of a damages award against VA security

officers could cause more lax enforcement of safety protocols

in a government building. In other words, the circumstances

in Oliva implicated the kind of policy balancing better left to

Congress. Snowden’s Bivens claim raises no such distinc-

tions.

In the end, although the Supreme Court has narrowly

cabined the Bivens remedy and consistently refused to

recognize new claims, we cannot decline to apply “the

20 No. 21-1463

settled law of Bivens” unless Snowden’s case is meaningfully

different—i.e., different in a way that implicates the

separation-of-powers calculus. Abbasi, 582 U.S. at 134, 139–

40. There is no such difference here. Bivens may one day be

reexamined; indeed, two Justices have proposed that it be

abandoned. Egbert, 142 S. Ct. at 1809–10 (Gorsuch, J., concur-

ring); Hernández, 140 S. Ct. at 750–53 (Thomas, J., concur-

ring). But our role is to apply the Court’s caselaw as it stands

now. Because Snowden’s claim is not meaningfully different

than Bivens itself, it may proceed.

REVERSED