Petition for Writ of Certiorari — Jose Oliva, Petitioner v. Mario Nivar, et al.
Supreme Court briefJan 29, 2021
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No.
1
In the
Supreme Court of the United States
JOSÉ OLIVA,
Petitioner,
v.
MARIO NIVAR, et al.,
Respondents.
On Petition for a Writ of Certiorari to the
United States Court of A ppeals for the Fifth Circuit
PETITION FOR A WRIT OF CERTIORARI
Patrick Jaicomo
Counsel of Record
A nya Bidwell
A lexa Gervasi
Institute for Justice
901 North Glebe Road, Suite 900
Arlington, VA 22203
(703) 682-9320
pjaicomo@ij.org
Counsel for Petitioner
300240
A
(800) 274-3321 • (800) 359-6859
i
QUESTION PRESENTED
Federal police working as security at a Veterans
Affairs hospital unreasonably seized seventy-yearold veteran José Oliva, choking and slamming him to
the ground without justification. Despite this Court’s
admonition in Ziglar v. Abbasi that a constitutional
remedy is available for search-and-seizure claims “in
this common and recurrent sphere of law enforcement,”
137 S. Ct. 1843, 1856–1857 (2017), the Fifth Circuit held
that Oliva could not sue the officers for the violation of his
constitutional rights because Oliva’s case is not factually
identical to Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971). Pet.
App. 6a–7a.
The question presented is:
Whether claims against federal police for Fourth
Amendment violations committed during standard law
enforcement operations fall within an established context
for Bivens, as the First, Second, Third, Fourth, Sixth,
Ninth, and Eleventh Circuits have held, or whether, as
the Fifth Circuit holds below, such claims present a new
context unless they involve narcotics officers “manacling
the plaintiff in front of his family in his home and stripsearching him in violation of the Fourth Amendment.”
Pet. App. 5a.
ii
PARTIES TO THE PROCEEDINGS
Petitioner is plaintiff José Oliva. Respondents are
defendants U.S. Department of Veterans Affairs Police
Officers Mario Nivar, Hector Barahona, and Mario Garcia.
iii
RELATED PROCEEDINGS
U.S. District Court for the Western District of Texas:
Oliva v. United States,
No. 3:18-CV-15 (Jan. 8, 2019; Aug. 20, 2019)
U.S. Court of Appeals for the Fifth Circuit:
Oliva v. Nivar,
No. 19-50795 (Sept. 2, 2020)
iv
TABLE OF CONTENTS
Page
OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
CONSTITUTIONAL PROVISION INVOLVED . . . . . 1
STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
REASONS FOR GRANTING THE PETITION . . . . . 6
I.
The Fifth Circuit’s decision disregards
Abbasi and rejects a Fourth Amendment remedy in the “common and re
current sphere of law enforcement.” . . . . . . . . . . 8
II. The Fifth Circuit’s decision departs from
the consensus reached by seven other circuit courts regarding Abbasi’s application
in the search-and-seizure context. . . . . . . . . . . . 17
III. The Fifth Circuit’s decision frustrates national uniformity, allowing thousands of federal
police in Texas, Mississippi, and Louisiana
to disregard the Fourth Amendment. . . . . . . . . 21
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
v
TABLE OF APPENDICES
Page
Appendix A — Opinion of the United States
Court of Appeals for the Fifth Circuit, Filed
September 2, 2020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a
Appendix B — Order of the United States District
Court for the Western District of Texas, El
Paso Division, Filed August 20, 2019 . . . . . . . . . . . 11a
Appendix C — Order of the United States District
Court for the Western District of Texas, El
Paso Division, Filed January 8, 2019 . . . . . . . . . . . . 25a
vi
TABLE OF CITED AUTHORITIES
Page
Cases
Anderson v. Creighton,
483 U.S. 635 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Ashcroft v. Iqbal,
556 U.S. 662 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Big Cats of Serenity Springs, Inc. v. Rhodes,
843 F.3d 853 (10th Cir. 2016) . . . . . . . . . . . . . . . . . . . 12
Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics,
403 U.S. 388 (1971) . . . . . . . . . . . . . . . . . . . . . . . passim
Boule v. Egbert,
980 F.3d 1309 (9th Cir. 2020) . . . . . . . . . . . . . . . . 17–18
Bryan v. United States,
913 F.3d 356 (3d Cir. 2019) . . . . . . . . . . . . . . . . . . 17, 20
Bush v. Lucas,
462 U.S. 367 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Cantú v. Moody,
933 F.3d 414 (5th Cir. 2019) . . . . . . . . . . . . . . . . . . . . . 5
Carlson v. Green,
446 U.S. 14 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9
vii
Cited Authorities
Page
Correctional Servs. Corp. v. Malesko,
534 U.S. 61 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Covey v. Assessor of Ohio Cnty.,
777 F.3d 186 (4th Cir. 2015) . . . . . . . . . . . . . . . . . . . . 13
Davis v. Passman,
442 U.S. 228 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
General Motors Leasing Corp. v. United States,
429 U.S. 338 (1977) . . . . . . . . . . . . . . . . . . . . . . . . 12, 15
Groh v. Ramirez,
540 U.S. 551 (2004) . . . . . . . . . . . . . . . . . . . . . 12, 14, 15
Gustafson v. Adkins,
803 F.3d 883 (7th Cir. 2015) . . . . . . . . . . . . . . . . . 12, 23
Harvey v. United States,
770 Fed. Appx. 949 (11th Cir. 2019) . . . . . . . . 17, 20, 23
Hernandez v. Mesa,
140 S. Ct. 735 (2020) . . . . . . . . . . . . . . . . . . . . . . passim
Hernandez-Cuevas v. Taylor,
723 F.3d 91 (1st Cir. 2013) . . . . . . . . . . . . . . . . . . .13, 23
Hicks v. Ferreyra,
965 F.3d 302 (4th Cir. 2020) . . . . . . . . . . . . . . . . passim
viii
Cited Authorities
Page
Hui v. Castaneda,
559 U.S. 799 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Hunter v. Bryant,
502 U.S. 224 (1991) . . . . . . . . . . . . . . . . . . . . . . . . 12, 14
Ioane v. Hodges,
939 F.3d 945 (9th Cir. 2018) . . . . . . . . . . . . . . 17, 20, 23
Jacobs v. Alam,
915 F.3d 1028 (6th Cir. 2019) . . . . . . . . . . . . . . . passim
Jones v. Kirchner,
835 F.3d 74 (D.C. Cir. 2016) . . . . . . . . . . . . . . . . . . . . 12
McLeod v. Mickle,
765 Fed. Appx. 582 (2d Cir. 2019) . . . . . . . . . 17, 20, 23
Meshal v. Higgenbotham,
804 F.3d 417 (D.C. Cir. 2015) . . . . . . . . . . . . . . . . . . . 12
Pagán-González v. Moreno,
919 F.3d 582 (1st Cir. 2019) . . . . . . . . . . . . . . . . . . 17, 20
Reichle v. Howards,
566 U.S. 658 (2012) . . . . . . . . . . . . . . . . . . . . . . . . 12, 15
Saucier v. Katz,
533 U.S. 194 (2001) . . . . . . . . . . . . . . . . . . . . . . . . 12, 15
ix
Cited Authorities
Page
Scott v. Harris,
550 U.S. 372 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Tanzin v. Tanvir,
141 S. Ct. 486 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . 23
United States v. Stanley,
483 U.S. 669 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Virginia v. Moore,
553 U.S. 164 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Webb v. United States,
789 F.3d 647 (6th Cir. 2015) . . . . . . . . . . . . . . . . . 13, 23
Whren v. United States,
517 U.S. 806 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Wilkie v. Robbins,
551 U.S. 537 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Wilson v. Layne,
526 U.S. 603 (1999) . . . . . . . . . . . . . . . . . . . . . . . . 12, 14
Ziglar v. Abbasi,
137 S. Ct. 1843 (2017) . . . . . . . . . . . . . . . . . . . . . passim
Constitutional Provisions
U.S. Const. Amend. IV . . . . . . . . . . . . . . . . . . . . . . passim
x
Cited Authorities
Page
Statutes
28 U.S.C. 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. 2679(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Reorganization Plan No. 1 of 1968, 33 Fed. Reg.
5611, § 3–4, 82 Stat. 1367 . . . . . . . . . . . . . . . . . . . . . . 15
Other Authorities
Brian A. Reaves, Bureau of Justice Statistics, Federal
Law Enforcement Officers, 2008 (June 2012) . . . . . 22
Connor Brooks, Bureau of Justice Statistics, Federal
Law Enforcement Officers, 2016 (Oct. 2019) . . . . . . 22
Daniel B. Rice & Jack Boeglin, Confining Cases
to Their Facts, 105 Va. L. Rev. 865 (2019) . . . . . . . . 13
Jasper Craven, Abusing Those Who Served,
The Intercept (July 8, 2019) . . . . . . . . . . . . . . . . . . . . 22
Office of Inspector General, United States Dep’t
of Veterans Affairs, Inadequate Governance
of the VA Police Program at Medical Facilities
(Dec. 13, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21–22
United States Dep’t of Veterans Affairs, State
Summaries: Louisiana (Sept. 30, 2017) . . . . . . . . . 21
xi
Cited Authorities
Page
United States Dep’t of Veterans Affairs, State
Summaries: Mississippi (Sept. 30, 2017) . . . . . . . . 21
United States Dep’t of Veterans Affairs, State
Summaries: Texas (Sept. 30, 2017) . . . . . . . . . . . . . 21
1
José Oliva petitions for a writ of certiorari to review
the judgment of the United States Court of Appeals for
the Fifth Circuit.
OPINIONS BELOW
The opinion of the Fifth Circuit, Pet. App. 1a, is reported at 973 F.3d 438. The August 20, 2019 opinion of the
United States District Court for the Western District of
Texas, Pet. App. 11a, is not reported. The January 8, 2019
opinion of the district court, Pet. App. 25a, is not reported
but is available at 2019 WL 136909.
JURISDICTION
The Fifth Circuit entered its opinion below on September 2, 2020. Through its COVID-19-related order
dated March 19, 2020, this Court extended the deadline
to file a petition for a writ of certiorari to 150 days from
the date of the Fifth Circuit’s opinion. Oliva timely files
this petition and invokes this Court’s jurisdiction under
28 U.S.C. 1254(1).
CONSTITUTIONAL PROVISION INVOLVED
The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
U.S. Const. Amend. IV.
2
STATEMENT
In Ziglar v. Abbasi, this Court held that although
extending a Bivens remedy to a “new context” is a “disfavored judicial activity,” that caution does not “cast doubt
on the continued force, or even the necessity, of Bivens
in the search-and-seizure context in which it arose.” 137
S. Ct. 1843, 1856–1857 (2017) (internal quotation marks
and citations omitted). Until the Fifth Circuit’s decision
below, the federal circuit courts had uniformly followed
both of Abbasi’s commands, declining to extend Bivens
into new contexts but allowing constitutional claims for
Fourth Amendment violations committed by federal police
during “standard ‘law enforcement operation[s.]’” Jacobs
v. Alam, 915 F.3d 1028, 1038 (6th Cir. 2019) (citing Abbasi, 137 S. Ct. at 1861); see also, e.g., Hicks v. Ferreyra,
965 F.3d 302, 311 (4th Cir. 2020) (approving a remedy for
“violations of the Fourth Amendment, committed in the
course of a routine law-enforcement action” (citing Abbasi,
137 S. Ct. at 1860)); note 11, infra.
The Fifth Circuit broke from the seven-circuit consensus, holding instead that Abbasi’s first command overrides
its second and that any deviation from the precise facts of
Bivens represents a “new context.” As a result, the Fifth
Circuit’s ruling frustrates the uniform “instruction and
guidance” that Bivens provides in the “common and recurrent sphere of law enforcement.” Abbasi, 137 S. Ct. at 1857.
This case involves a Bivens claim asserted in that sphere.
José Oliva is an American military veteran, who
served during the deadliest year of the Vietnam War.
After returning home, Oliva dedicated himself to a life
of public service, spending his career in both state and
3
federal law enforcement. In 2010, Oliva retired from the
Department of Homeland Security and received a gold
watch for his decades of service.
On February 16, 2016, federal police working as
security at an El Paso, Texas, Veterans Affairs hospital
destroyed that watch when they choked, slammed to the
ground, and seriously injured Oliva, who was seventy
years old at the time. See Pet. App. 2a.
That afternoon, Oliva was visiting the hospital for a
scheduled dental appointment. Pet. App. 26a. To enter,
he was required to go through a security checkpoint
manned by federal police, Mario Nivar, Hector Barahona,
and Mario Garcia. Id. at 2a. As he had done many times
before, Oliva placed his belongings into an inspection bin.
When Nivar demanded Oliva’s identification, Oliva “calmly
explained . . . that it was in the inspection bin with [his]
other personal items.” Ibid. (alterations in original).
Nivar, inexplicably agitated, came around the security
checkpoint and approached Oliva with handcuffs drawn.
Pet. App. 12a–13a. Nivar then instructed Oliva to walk
through the metal detector, at which point Barahona
grabbed Oliva and Nivar put him in a chokehold. Id. at
12a, 27a. Before slamming Oliva to the ground, the officers
wrenched his arm behind his back so violently that it made
“a loud popping sound.” See id. at 27a. The officers then
handcuffed Oliva and detained him in a side room before
charging him with disorderly conduct—a charge that was
later dropped. Id. at 13a, 19a, 27a.
4
Oliva complied with the officers’ instructions. Pet.
App. 2a. He never resisted or even raised his voice. Id. at
13a, 27a. The only justification the officers offered for their
use of force came through their submission of “materially
identical affidavits” to the district court, which asserted
that Oliva “attempted to enter the [hospital] without first
clearing security” because he failed to show identification. Id. at 2a–3a (alteration in original). But the entire
incident was captured on video, which shows that Oliva’s
entry into the hospital—and his brutal assault—were
directed by Nivar.1
The officers seriously injured Oliva. He has since
undergone two shoulder surgeries and treatment for persistent ear and throat issues. Pet. App. 3a, 27a.
Oliva sued the officers, alleging Fourth Amendment
claims under Bivens. 2 The officers ultimately moved for
summary judgment, asserting qualified immunity. Pet.
App. 4a, 14a. The district court held that the officers were
not entitled to qualified immunity because they “violated
clearly established law * * * when they used excessive
force on an unresisting suspect” who “did not commit a
crime.” Id. at 23a, 19a.
The video is available for this Court’s review at the following
link: https://tinyurl.com/JoseOliva. D. Ct. Doc. 82, Ex. B; see also
Pet. App. 3a (“Security cameras captured the altercation on video,
so [the Fifth Circuit] consider[ed] ‘the facts in the light depicted by
the videotape.’” (citing Scott v. Harris, 550 U.S. 372, 381 (2007))).
1
Oliva also sued the United States under the Federal Tort
Claims Act, but those claims are not on appeal and have been
stayed pending the disposition of this petition. See D. Ct. Doc. 99.
The United States has denied any liability for the officers’ actions
under the FTCA. See D. Ct. Doc. 13.
2
5
The officers appealed to the Fifth Circuit. In addition
to challenging the district court’s denial of qualified immunity, the officers argued that Oliva’s case represented
a new context for Bivens and that the court should not
permit Oliva a constitutional remedy for his beating. See
Pet. App. 8a n.2. The Fifth Circuit agreed, dismissing
Oliva’s claims without reaching the issue of qualified immunity. Id. at 4a, 10a.
The Fifth Circuit observed that the “understanding of
a ‘new context’ is broad.’” Pet. App. 5a (quoting Hernandez
v. Mesa, 140 S. Ct. 735, 743 (2020)). And because Abbasi
explained that “even a modest extension [of Bivens] is
still an extension,” 137 S. Ct. at 1864, the panel concluded
that a case presents a new context for Bivens “even if ‘a
plaintiff asserts a violation of the same clause of the same
amendment in the same way.’” Pet. App. 6a (quoting Cantú
v. Moody, 933 F.3d 414, 422 (5th Cir. 2019)). The panel
determined that established Bivens claims are limited to
situations involving the same facts as Bivens: narcotics
officers “manacling the plaintiff in front of his family in
his home and strip-searching him.” Pet. App. 5a; see id.
at 6a–7a. According to the panel, “[v]irtually everything
else is a ‘new context.’” Id. at 5a (quoting Abbasi, 137 S.
Ct. at 1865).
Applying that understanding of Abbasi’s new-context
analysis—one not shared by the other seven circuit courts
that have addressed the issue, see Section II, infra—the
Fifth Circuit held that Oliva’s case presented a new
context because narcotics officers did not violate Oliva’s
Fourth Amendment rights in front of his family in his
home and because Oliva had been placed in a chokehold,
rather than strip-searched. Pet. App. 6a–7a.
6
The Fifth Circuit then concluded that Oliva had no
constitutional remedy because “special factors counsel
against extending Bivens” to cover Oliva’s case. Pet. App.
8a. The exclusive “special factor” cited by the panel is the
existence of the Federal Tort Claims Act, even though
“the FTCA might not give Oliva [what] he seeks” through
Bivens, which is the vindication of his Fourth Amendment rights. Id. at 8a–10a. The panel did not address this
Court’s holding in Carlson v. Green that it is “crystal clear
that Congress views the FTCA and Bivens as parallel,
complementary causes of action.” 446 U.S. 14, 20 (1980).
REASONS FOR GRANTING THE PETITION
This Court should grant review and reverse the decision below because it disregards Abbasi and creates
a circuit split that frustrates the uniform availability of
constitutional remedies for unreasonable searches and
seizures committed by federal police. In Abbasi, the Court
explained that Bivens should not be extended into a “new
context” but that the availability of a Fourth Amendment remedy is, nevertheless, “settled law” in the “common and recurrent sphere of law enforcement,” where it
“vindicate[s] the Constitution” and “provides instruction
and guidance to federal law enforcement officers.” 137 S.
Ct. at 1856–1857; see also Section I, infra.
Since Abbasi, the appellate courts of the First, Second, Third, Fourth, Sixth, Ninth, and Eleventh Circuits
have all recognized the existence of constitutional claims
against federal police for violations of the Fourth Amendment. All seven circuit courts have permitted search-andseizure claims for constitutional violations committed
during “standard law enforcement operations” without
7
regard to factual distinctions from Bivens. Jacobs, 915
F.3d at 1038; see Section II, infra.
With its decision below, the Fifth Circuit disregards
Abbasi and breaks with its sister circuits. The Fifth
Circuit does so by holding that any Fourth Amendment
claim not involving the same agency and the same factual
circumstances presents a new context for Bivens. Thus,
unless an individual finds himself handcuffed in his apartment in front of his family by narcotics officers, he has
no Fourth Amendment remedy in Texas, Louisiana, or
Mississippi.
This Court should grant the petition to review the
opinion below and resolve the post-Abbasi circuit split the
Fifth Circuit has created. Without this Court’s review,
the circuit split will deepen; the more-than-one-hundredthousand federal police operating across the United States
will lose the uniform instruction and guidance of Bivens;
and the ability of Americans to defend their Fourth
Amendment rights against federal abuse will depend on
the state in which those rights are violated.
The decision below presents an appropriate vehicle to
address the split because it is focused exclusively on the
availability of a search-and-seizure Bivens claim against
federal police, involves simple facts supported by video
evidence, and stands in stark contrast to the decisions
of the other circuits that have applied Abbasi to permit
“garden-variety Bivens claims” for Fourth Amendment
violations committed by federal police. Jacobs, 915 F.3d
at 1038.
8
I.
The Fifth Circuit’s decision disregards Abbasi and
rejects a Fourth Amendment remedy in the “common and recurrent sphere of law enforcement.”
Since its 1971 decision in Bivens, the Court has
recognized a damages remedy for Fourth Amendment
violations committed by federal police during standard
law enforcement operations. See Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388,
397 (1971); Abbasi, 137 S. Ct. at 1854. In numerous cases,
including Abbasi, the Court has specifically acknowledged
that Bivens provides “a damages remedy to compensate
persons injured by federal officers who violated the prohibition against unreasonable search and seizures.” Abbasi,
137 S. Ct. at 1854; see also note 9, infra.
Despite its criticism of Bivens, Abbasi confirmed that
“in the search-and-seizure context in which it arose,” a
constitutional remedy not only exists but is necessary.
137 S. Ct. at 1856. While most circuit courts have applied
Abbasi by permitting constitutional claims against “linelevel agents of a federal criminal law enforcement agency,
for violations of the Fourth Amendment, committed in the
course of a routine law-enforcement action,” the Fifth Circuit has interpreted Abbasi to cabin Bivens to its specific
facts. Compare, e.g., Hicks, 965 F.3d at 311, with Pet. App.
6a–7a. The Fifth Circuit’s decision conflicts with Abbasi
and warrants this Court’s review.
A.
Bivens established a Fourth Amendment remedy for unreasonable searches and seizures
committed by federal police.
In Bivens, agents of the now-defunct Federal Bureau
of Narcotics entered the apartment of Webster Bivens
9
without a warrant and arrested him for alleged narcotics
violations. 403 U.S. at 389. The agents, using excessive
force, “manacled [Bivens] in front of his wife and children,
and threatened to arrest the entire family” before searching their apartment. Ibid. The agents then took Bivens to a
federal courthouse, where they interrogated, booked, and
strip-searched him. Ibid. Bivens sued the agents directly
under the Fourth Amendment, and the Court allowed his
constitutional claims to proceed, holding “[t]hat damages
may be obtained for injuries consequent upon a violation
of the Fourth Amendment by federal officials.” Id. at 395.
In the decade that followed, the Court recognized a
constitutional remedy in two other contexts. See Carlson,
446 U.S. 14 (failure to provide medical attention to an
inmate in a government prison in violation of the Eighth
Amendment); Davis v. Passman, 442 U.S. 228 (1979) (certain gender discrimination claims in violation of the Fifth
Amendment). The Court soon after declined to recognize
constitutional remedies in additional contexts. See, e.g.,
Bush v. Lucas, 462 U.S. 367 (1983). It continues to do so
today. See, e.g., Hernandez, 140 S. Ct. 735. But Bivens
still provides a remedy for Fourth Amendment violations
committed by federal police.
The Court explained its current position on constitutional remedies in Ziglar v. Abbasi, where it stated that,
absent an act of Congress, “expanding the Bivens remedy
is now a ‘disfavored’ judicial activity.” 137 S. Ct. at 1857
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Abbasi
announced that the extension of Bivens into a “new context” would only be permitted when there are no “special
factors counselling hesitation.” Ibid. (quoting Carlson,
446 U.S. at 18). Thus, the Court affirmed its support for
10
a two-step judicial inquiry into Bivens claims. The first
step asks whether a case presents a “new context.” If the
answer is no, the inquiry stops there, and the plaintiff may
proceed with the claim. If the answer is yes, the inquiry
continues to the second step, which asks whether there are
“special factors counselling hesitation” against expanding
Bivens. If no such factors exist, the claim may proceed.
Otherwise, a constitutional remedy is unavailable. Ibid.;
Hernandez, 140 S. Ct. at 743.
Abbasi explained that a case presents a new context
when it is “different in a meaningful way from previous
Bivens cases decided by this Court.” 137 S. Ct. at 1859.
Meaningful differences include the: (1) rank of the officers
involved; (2) constitutional right at issue; (3) generality or
specificity of the official action; (4) extent of judicial guidance as to how an officer should respond to the problem;
(5) statutory mandate under which the officer was operating; (6) risk of disruptive intrusion by the Judiciary into
the functioning of the other branches; or (7) presence of
potential factors previous Bivens cases did not consider.
Id. at 1860.
Applying the two-step framework, Abbasi held that
claims against high-ranking government officials for
policy decisions related to national security in the wake
of the September 11 attacks presented a new context for
Bivens. 137 S. Ct. at 1860. For that reason, the Court considered whether there were “special factors counselling
hesitation” against permitting a Bivens remedy, including whether extending Bivens to a new context would (1)
call into question the formulation or implementation of a
general policy; (2) interfere with sensitive functions of the
Executive Branch, such as national security or military
11
discipline; or (3) overlap with an alternative method of
relief. Id. at 1860–1863. Abbasi concluded there were factors counseling hesitation and declined to extend Bivens
into a new context. Id. at 1863. 3
B. Abbasi confirmed the availability of a Fourth
Amendment Bivens remedy against federal
police.
While Abbasi expressed caution about implied causes
of action, the Court was emphatic that its opinion did not
“cast doubt on the continued force, or even the necessity,
of Bivens in the search-and-seizure context in which it
arose.” 137 S. Ct. at 1856. The Court explained: “The
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.” Id. at 1857.
Consistent with the important interests Bivens serves
in its original context, the Court has regularly acknowledged Fourth Amendment Bivens claims, explicitly statLast term, this Court confirmed Abbasi’s analysis in Hernandez v. Mesa. In that case, the Court concluded that a Customs
and Border Protection officer’s cross-border shooting of a Mexican
teenager presented a “new context” for Bivens because the foreign relations implications of the incident constituted a meaningful difference from established Bivens claims—i.e., it created a
significant “risk of disruptive intrusion by the Judiciary into the
functioning of other branches.” Hernandez, 140 S. Ct. at 744 (quoting Abbasi, 137 S. Ct. at 1860). Hernandez then found that the
potential effect on national security and foreign policy, as well as
congressional reluctance to provide a remedy for injuries caused
abroad by federal officials, were “special factors” that counseled
against extending Bivens into the new context. Id. at 744–749.
3
12
ing that “Bivens * * * allow[s] a plaintiff to seek money
damages from government officials who have violated his
Fourth Amendment rights.” Wilson v. Layne, 526 U.S.
603, 609 (1999); accord Meshal v. Higgenbotham, 804
F.3d 417, 429 (D.C. Cir. 2015) (Kavanaugh, J., concurring)
(“The classic Bivens case entails a suit alleging an unreasonable search or seizure by a federal officer in violation
of the Fourth Amendment.”). The Court has never cabined Bivens to its precise facts. Instead, it has generally
permitted claims against federal police who violate the
Fourth Amendment during “standard law enforcement
operations.”4 Abbasi, 137 S. Ct. at 1861 (citation and internal quotation marks omitted). The circuit courts have
taken the same approach and recognized a constitutional
remedy against federal police in a variety of search-andseizure scenarios. 5
See, e.g., Reichle v. Howards, 566 U.S. 658 (2012) (Secret
Service officer making an arrest in a shopping mall); Groh v.
Ramirez, 540 U.S. 551 (2004) (Bureau of Alcohol, Tobacco, and
Firearms agent conducting a search in a home); Saucier v. Katz,
533 U.S. 194 (2001) (military police officer using excessive force on
an army base); Wilson, 526 U.S. 603 (federal marshals searching
a home with a news crew); Hunter v. Bryant, 502 U.S. 224 (1991)
(per curiam) (Secret Service agent making a warrantless arrest in
a home); Anderson v. Creighton, 483 U.S. 635 (1987) (FBI agents
searching a home without a warrant); General Motors Leasing
Corp. v. United States, 429 U.S. 338 (1977) (IRS agents seizing
property from a business).
4
See, e.g., Big Cats of Serenity Springs, Inc. v. Rhodes, 843
F.3d 853 (10th Cir. 2016) (USDA Animal and Plant Health Inspection Service inspectors forcibly entering and inspecting a
business); Jones v. Kirchner, 835 F.3d 74 (D.C. Cir. 2016) (FBI
agent failing to announce himself before executing a search warrant); Gustafson v. Adkins, 803 F.3d 883 (7th Cir. 2015) (VA police
officer installing hidden cameras in a women’s changing room);
5
13
C.
The Fifth Circuit’s decision disregards Abbasi’s
admonition that Bivens established a Fourth
Amendment remedy for unreasonable searches
and seizures committed by federal police.
With its decision below, the Fifth Circuit departed
from the Court’s recognition that Bivens extends to
search-and-seizure claims against federal police. Specifically, the Fifth Circuit discarded Abbasi’s guidance
by confining Bivens to its facts—“drawing * * * factual
distinctions that make no sense under ordinary norms of
legal reasoning.” Daniel B. Rice & Jack Boeglin, Confining Cases to Their Facts, 105 Va. L. Rev. 865, 909–910 &
n.186 (2019) (collecting cases in which “[t]his seemingly
arbitrary practice has endured scathing criticism from
jurists”).
The Fifth Circuit did not base its decision on the
meaningful differences Abbasi provides to identify a new
context for Bivens. See 137 S. Ct. at 1860. Instead, the
Fifth Circuit based its decision on inconsequential distinctions: (1) “This case arose in a government hospital, not a
private home”; (2) “The VA officers were manning a metal
detector, not making a warrantless search for narcotics”;
(3) “The dispute that gave rise to Oliva’s altercation involved the hospital’s ID policy, not a narcotics investigation”; (4) “The VA officers did not manacle Oliva in front
Webb v. United States, 789 F.3d 647 (6th Cir. 2015) (DEA agent
fabricating evidence); Covey v. Assessor of Ohio Cnty., 777 F.3d
186 (4th Cir. 2015) (DEA agents searching a patio without a warrant); Hernandez-Cuevas v. Taylor, 723 F.3d 91 (1st Cir. 2013)
(FBI agents arresting an individual and holding him for months
in pretrial detention without probable cause); see also note 11,
infra (collecting post-Abbasi circuit decisions).
14
of his family or strip-search him”; and (5) “Contrariwise
the narcotics officers did not place Webster Bivens in a
chokehold.” Pet. App. 6a–7a.
These distinctions go against Abbasi’s admonition that
the new-context analysis “is not intended to cast doubt
on the continued force * * * of Bivens” in the “common
and recurrent sphere of law enforcement.” Abbasi, 137 S.
Ct. 1856–1857. And each distinction is so specific that, if
accepted as sufficient to establish a new context, it would
make illusory the “common and recurrent sphere” where
Bivens remains “settled law.” Id. at 1857.
This Court has never limited search-and-seizure
Bivens claims to narcotics investigations, private homes,
or situations in which an individual is handcuffed in front
of family members. Contra Pet. App. 6a–7a. The Fifth
Circuit’s crabbed application of Bivens runs contrary to
this Court’s precedent.
To begin with, in the fifty years since Bivens was
decided, the Court has never restricted the availability of
a Fourth Amendment remedy to narcotics investigations
or officers. A case in point is Groh v. Ramirez, where the
Court affirmed the availability of a Bivens remedy against
an agent of the Bureau of Alcohol, Tobacco, and Firearms
for his use of a facially invalid warrant to search a home for
illegal firearms. 540 U.S. 551, 554–556, 566 (2004).6 Contra
Pet. App. 7a (“Oliva’s claim involves * * * different officers
from a different agency.” (citation and internal quotation
Accord, e.g., Wilson, 526 U.S. 603 (federal marshals searching for man who had violated probation); Hunter, 502 U.S. 224
(Secret Service agent investigating an assassination plot).
6
15
marks omitted)). Moreover, if Bivens were restricted to
constitutional violations committed by narcotics officers
searching for narcotics, Abbasi and Hernandez—neither
of which involved narcotics—could have rested on that
simple distinction.7
Similarly, the fact that federal police violated Oliva’s
Fourth Amendment rights in a VA hospital, “not a private
home,” does not establish a new context. Pet. App. 6a–7a.
Bivens itself involved Fourth Amendment violations that
took place in a home and a federal courthouse. Bivens, 403
U.S. at 389. The Court has decided several Bivens cases
that did not involve the search of a home. 8 And as with the
Fifth Circuit’s narcotics distinction, if Bivens were limited
to violations committed in a home, Abbasi and Hernandez
could have been decided on that basis.
Finally, the fact that what federal police did to Oliva
was worse than what narcotics officers did to Bivens cannot justify denying a remedy to Oliva when one was provided to Bivens. See Pet. App. 7a (observing that, unlike in
Oliva’s case, in Bivens “the narcotics officers did not place
Webster Bivens in a chokehold”). The Court’s concern in
If a federal officer’s employing agency were dispositive, not
only would Groh have been wrongly decided, but Bivens would have
been dead on arrival because the Federal Bureau of Narcotics was
dissolved three years before Bivens. Reorganization Plan No. 1
of 1968, 33 Fed. Reg. 5611, § 3–4, 82 Stat. 1367, 1368 (abolishing
the Bureau of Narcotics in the Department of the Treasury and
establishing the Bureau of Narcotics and Dangerous Drugs in the
Department of Justice).
7
See, e.g., Reichle, 566 U.S. 658 (shopping mall); Saucier, 533
U.S. 194 (army base); General Motors, 429 U.S. 338 (business
office).
8
16
Bivens was “the Fourth Amendment’s protection against
unreasonable searches and seizures by federal agents,”
403 U.S. at 391, not the precise factual circumstances under which those federal agents violated the Constitution. 9
The Fifth Circuit now only recognizes a Bivens remedy for Fourth Amendment violations committed by narcotics officers in private homes and in front of a suspect’s
family. See Pet. App. 6a–7a.10 That is inconsistent with
Abbasi and with the Court’s other decisions. It should be
reversed.
The Court has consistently summarized the original context
of Bivens in general terms. See, e.g., Hui v. Castaneda, 559 U.S.
799, 803 n.2 (2010) (“In Bivens this Court recognized an implied
cause of action for damages against federal officers alleged to
have violated the petitioner’s Fourth Amendment rights.” (internal citation omitted)); Wilkie v. Robbins, 551 U.S. 537, 549 (2007)
(“Bivens held that the victim of a Fourth Amendment violation by
federal officers had a claim for damages.” (internal citation omitted)); Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001)
(“In Bivens * * * we held that a victim of a Fourth Amendment
violation by federal officers may bring suit for money damages
against the officers in federal court.”); United States v. Stanley,
483 U.S. 669, 678 (1987) (“In Bivens, we held that a search and
seizure that violates the Fourth Amendment can give rise to an
action for damages against the offending federal officials even in
the absence of a statute authorizing such relief.”).
9
Because the Fifth Circuit determined that Oliva’s case
presented a new context, it moved to the second part of the twoparty inquiry and incorrectly found that special factors counseled
hesitation against extending a Bivens remedy to Oliva’s case. Pet.
App. 7a–10a. That error presents this Court with an alternative
basis for reversal, but Oliva does not address the issue in this petition because it is unnecessary to decide the question presented.
10
17
II. The Fifth Circuit’s decision departs from the consensus reached by seven other circuit courts regarding Abbasi’s application in the search-and-seizure
context.
By applying Abbasi in a way that renders every case
a new context under Bivens, the Fifth Circuit has created
a post-Abbasi circuit split. On one side of the split is the
Fifth Circuit, holding that “[v]irtually everything * * * is
a new context” under Bivens unless it involves narcotics
officers “manacling the plaintiff in front of his family in his
home and strip-searching him in violation of the Fourth
Amendment.” Pet. App. 5a (citing Bivens, 403 U.S. at
389–390; Abbasi, 137 S. Ct. at 1865) (internal quotation
marks omitted); see also id. at 6a–7a.
Seven circuit courts are on the other side of the split.
The First, Second, Third, Fourth, Sixth, Ninth, and
Eleventh Circuits have all permitted search-and-seizure
claims against federal police without parsing factual distinctions from Bivens.11 The Fourth and Sixth Circuits
See, e.g., Pagán-González v. Moreno, 919 F.3d 582 (1st Cir.
2019) (FBI agents fabricating an emergency to search a home
and computer); McLeod v. Mickle, 765 Fed. Appx. 582 (2d Cir.
2019) (summary order) (U.S. Forest Service officer prolonging a
traffic stop); Bryan v. United States, 913 F.3d 356 (3d Cir. 2019)
(Customs and Border Protection officer searching the cabin of a
cruise ship docked in the U.S. Virgin Islands); Hicks, 965 F.3d
302 (U.S. Park Police stopping a motorist without justification);
Jacobs, 915 F.3d 1028 (federal marshals shooting the resident of
a home being searched); Ioane v. Hodges, 939 F.3d 945 (9th Cir.
2018) (IRS agent forcing a homeowner to use the bathroom in
her presence); Harvey v. United States, 770 Fed. Appx. 949 (11th
Cir. 2019) (per curiam) (USPS criminal investigator precluding
the plaintiff from accessing his storage unit). But see Boule v.
Egbert, 980 F.3d 1309, 1313–1314 (9th Cir. 2020) (holding that a
11
18
have explicitly rejected distinctions like those the Fifth
Circuit held represent a new context. See Hicks, 965 F.3d
at 311–312; Jacobs, 915 F.3d at 1038–1039. And all seven
federal circuit courts permit claims against federal police
who violate the Fourth Amendment while engaged in traditional law enforcement tasks; the Fifth Circuit does not.
The Sixth Circuit’s decision in Jacobs, for example,
involved the U.S. Marshals Service searching a home for a
fugitive and shooting the plaintiff. 915 F.3d at 1033–1034.
The plaintiff sued under Bivens, and the marshals argued—presaging the Fifth Circuit’s decision below—that
the case presented a new context, “mak[ing] much out of
factual differences between Bivens * * * and this case.”12
claim against a Customs and Border Protection officer presents a
new context because “[d]efendant is an agent of the border patrol
rather than of the F.B.I.” but allowing a Bivens remedy because
the case involved “a conventional Fourth Amendment claim, indistinguishable from countless such claims brought against federal,
state, and local law enforcement officials, except for the fact that
[the defendant] is a border patrol agent”).
Like the Fifth Circuit, the marshals noted that Bivens
“involve[d] claims against a different federal agency, based upon
a completely different set of facts.” Defendants’ Br. at 26, Jacobs
v. Alam, 915 F.3d 1028 (6th Cir. 2019) (No. 18-1124), 2018 WL
2331732. Similarly, the marshals attempted to limit the established
context of Bivens to narcotics investigations: “[T]he specific ‘context’ of Bivens was Federal Bureau of Narcotics agents entering
a private residence without a warrant to execute a search for narcotics, and then handcuffing the occupant during the warrantless
search.” Ibid. The marshals argued that the case against them was
meaningfully different from Bivens because “U.S. Marshals Service deputies * * * had legally entered a residence by consent in the
pursuit of a fugitive.” Ibid. Then, they had “fired at a suspect who
intentionally attempted to surprise and frighten them, conspired
to plant evidence * * * , arrested him based on false accounts and
12
19
Id. at 1038. The Sixth Circuit dispensed with the marshals’
distinctions. Noting that in Abbasi “the Court took great
care to emphasize the ‘continued force’ and ‘necessity[]
of Bivens in the search-and-seizure context in which it
arose,’” id. at 1037 (quoting Abbasi, 137 S. Ct. at 1856),
Jacobs held that the plaintiff’s Fourth Amendment claims
were “run-of-the-mill challenges to ‘standard law enforcement operations’ that fall well within Bivens itself.” Id.
at 1038; see also id. at 1038–1039 (“find[ing] plaintiff’s
garden-variety Bivens claims to be viable post-[Abbasi]”
(citation omitted)).
Similarly, in the Fourth Circuit’s Hicks decision, a
Secret Service agent brought Fourth Amendment claims
against U.S. Park Police officers who twice stopped his
vehicle without probable cause or reasonable suspicion.
Hicks, 965 F.3d at 306. The officers argued that the case
presented a new context,13 but the Fourth Circuit concluded that “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.” Id. at 311. The Fourth Circuit explained, “[j]ust
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
planted evidence, and then participated in a criminal prosecution
based upon the false accounts and the planted evidence.” Ibid.
The police cited as meaningful differences the facts that “Appellants and Appellee were law enforcement officers and members
of the executive branch of the federal government” and the case
against the police “involves a Terry stop of a vehicle, which is a
de minimis constitutional intrusion compared to the warrantless
home invasion, arrest and strip-search in Bivens.” Appellants’
Reply Br. at 7–8, Hicks v. Ferreyra, 965 F.3d 302 (4th Cir. 2020)
(No. 19-1697), 2019 WL 5789882.
13
20
course of a routine law-enforcement action.” Ibid. (citing
Abbasi, 137 S. Ct. at 1860).
The circuit split created by the Fifth Circuit frustrates
the uniform availability of redress for Fourth Amendment
violations, as well as the “guidance to federal law enforcement officers,” for which Abbasi deemed Bivens both
settled and necessary. Abbasi, 137 S. Ct. at 1856–1857.
Where the Fifth Circuit has held there is no constitutional
remedy, except against narcotics officers in very limited
circumstances, Pet. App. 5a–7a, the First Circuit has
allowed a constitutional remedy for Fourth Amendment
claims against FBI agents, Págan-González v. Moreno,
919 F.3d 582 (1st Cir. 2019); the Second Circuit against a
U.S. Forest Service officer, McLeod v. Mickle, 765 Fed.
Appx. 582 (2d Cir. 2019) (summary order); the Third
Circuit against a Customs and Border Protection officer,
Bryan v. United States, 913 F.3d 356 (3d Cir. 2019); the
Fourth Circuit against U.S. Park Police, Hicks, 965 F.3d
302; the Sixth Circuit against federal marshals, Jacobs, 915
F.3d 1028; the Ninth Circuit against an IRS agent, Ioane
v. Hodges, 939 F.3d 945 (9th Cir. 2018); and the Eleventh
Circuit against a USPS investigator, Harvey v. United
States, 770 Fed. Appx. 949 (11th Cir. 2019) (per curiam).
Unless this Court intervenes, the availability of a
Fourth Amendment remedy against federal police depends on where a claim is asserted. That inconsistency
undermines not only Abbasi, but the Court’s pronouncements that it “cannot accept that the search and seizure
protections of the Fourth Amendment” depend on geography, Whren v. United States, 517 U.S. 806, 815 (1996), or
the identity of the government actor, Virginia v. Moore,
553 U.S. 164, 176 (2008). “[T]here is very little to be gained
from the standpoint of federalism by preserving differ-
21
ent rules of liability for federal officers dependent on the
State where the injury occurs.” Bivens, 403 U.S. at 409
(Harlan, J., concurring).
III. The Fifth Circuit’s decision frustrates national
uniformity, allowing thousands of federal police
in Texas, Mississippi, and Louisiana to disregard
the Fourth Amendment.
The Fifth Circuit’s decision frustrates the dual purposes served by Bivens in the search-and-seizure context:
to “vindicate the Constitution by allowing some redress
for injuries, and * * * provide[] instruction and guidance
to federal law enforcement officers.” Abbasi, 137 S. Ct.
1856–1857. Instead, the Fifth Circuit creates an enormous
constitutional vacuum.
Most narrowly understood, the decision below makes
VA facilities across the Fifth Circuit Constitution-free
zones, where federal police can violate the Fourth Amendment without consequence. In the Fifth Circuit, VA facilities serve more than two million Americans who, like
Oliva, served our country.14 But those facilities have also
been plagued with policing issues, including the use of
excessive force.15 By withholding constitutional remedies
See United States Dep’t of Veterans Affairs, State Summaries: Texas (Sept. 30, 2017), https://tinyurl.com/VATexas; United
States Dep’t of Veterans Affairs, State Summaries: Louisiana
(Sept. 30, 2017), https://tinyurl.com/VALouisiana; United States
Dep’t of Veterans Affairs, State Summaries: Mississippi (Sept.
30, 2017), https://tinyurl.com/VAMississippi.
14
See Office of Inspector General, United States Dep’t
of Veterans A ffa i rs, Ina dequate Gover nance of the VA
Police Program at Medical Facilities, i (Dec. 13, 2018),
https://tinyurl.com/VAAudit (“VA did not have adequate and co15
22
from veterans at VA facilities as a means to push back
against these abuses, the Fifth Circuit has decimated the
Fourth Amendment rights of American veterans—the
very people who fought to preserve those rights for us all.
That would be troubling enough on its own, but the
Fifth Circuit’s ruling reaches well beyond constitutional
violations committed against veterans within VA facilities.
The decision below revokes a Fourth Amendment remedy
against all federal police—except, perhaps, narcotics officers under limited circumstances. Compare Pet. App. 7a
(excluding Oliva’s claims because they involve a “different
agency” than Bivens), with note 7, supra (explaining that
the agency in Bivens was disbanded in 1968). More than
one hundred thousand federal police operate in the United
States today.16 As of 2008, nearly seventeen thousand
policed the Fifth Circuit.17
ordinated governance over its police program to ensure effective
management and oversight for its approximately 4,000-strong police officer workforce at its 139 medical facilities.”); Jasper Craven,
Abusing Those Who Served, The Intercept (July 8, 2019), https://
tinyurl.com/VAAbuse (last visited Jan. 14, 2021) (“The Intercept
has identified dozens of credible allegations that VA cops in every
corner of the United States have neglected standard police procedures, violated patients’ constitutional rights, or broken the law.”).
Connor Brooks, Bureau of Justice Statistics, Federal Law
Enforcement Officers, 2016, 6–7 tbls. 4 & 6 (Oct. 2019), https://
tinyurl.com/FederalPolice. Even if the Fifth Circuit’s decision
were understood to permit search-and-seizure claims against
DEA agents, constitutional claims would still be prohibited against
ninety-seven percent of federal law enforcement officers. Ibid.
(showing that DEA agents represent just three percent of the
total 132,110 federal law enforcement officers).
16
Brian A. Reaves, Bureau of Justice Statistics, Federal Law
Enforcement Officers, 2008, 11 tbl. 1 (June 2012), https://tinyurl.
com/5thCirPolice.
17
23
If the decision below is allowed to stand—effectively
making the Fourth Amendment inapplicable to the thousands of federal police in Texas, Louisiana, and Mississippi—there will be no remedy in the Fifth Circuit against a
VA police officer who installs hidden cameras in a women’s
changing room, contra Gustafson v. Adkins, 803 F.3d 883
(7th Cir. 2015); an FBI agent who arrests an individual
and holds him for months in pretrial detention without
probable cause, contra Hernandez-Cuevas v. Taylor, 723
F.3d 91 (1st Cir. 2013); a DEA agent who fabricates evidence, contra Webb v. United States, 789 F.3d 647 (6th Cir.
2015); an IRS agent who forces an innocent person to use
the bathroom in her presence, contra Ioane, 939 F.3d at
952; a USPS inspector who locks an individual out of his
storage unit, contra Harvey, 770 Fed. Appx. at 952; and a
U.S. Forest Service officer who detains a motorist without
cause, contra McLeod, 765 Fed. Appx. at 585.
That contradicts both Abbasi and the national uniformity of federal law. It is critical for this Court to step in
now and resolve the circuit split by reversing the Fifth
Circuit’s decision.18
Not only does the decision below disregard this Court’s
precedent and create a circuit split, it denies an established constitutional remedy to millions of Americans. As this Court recently
explained, “the Westfall Act * * * left open claims for constitutional
violations.” Tanzin v. Tanvir, 141 S. Ct. 486, 491 (2020) (citing 28
U.S.C. 2679(b)(2)); see also Hernandez, 140 S. Ct. at 748 n.9 (stating
the Westfall Act “left Bivens where it found it” in 1988); Abbasi,
137 S. Ct. at 1856. Through that statute, “damages against federal
officials [are] an appropriate form of relief today.” Tanzin, 141 S.
Ct. at 491. That is no longer the case for the millions of people in
Texas, Louisiana, and Mississippi.
18
24
Further, although the Department of Justice has not
been involved in this case on appeal, see note 2, supra,
this Court should call for the view of the Solicitor General
on this issue of national importance.
CONCLUSION
This Court should grant the petition, reaffirm its
holding in Abbasi that Bivens is “settled law * * * in th[e]
common and recurrent sphere of law enforcement,” 137 S.
Ct. at 1857, and reverse the Fifth Circuit’s decision below.
Respectfully submitted,
Patrick Jaicomo
Counsel of Record
A nya Bidwell
A lexa Gervasi
Institute for Justice
901 North Glebe Road, Suite 900
Arlington, VA 22203
(703) 682-9320
pjaicomo@ij.org
Counsel for Petitioner
APPENDIX
1a
Appendix
A
Appendix A — Opinion
of the United
States Court of
Appeals for the Fifth Circuit,
Filed September 2, 2020
United States Court of Appeals
for the Fifth Circuit
No. 19-50795
JOSE L. OLIVA,
Plaintiff-Appellee,
versus
MARIO J. NIVAR; HECTOR BARAHONA;
MARIO GARCIA,
Defendants-Appellants.
Appeal from the United States District Court for the
Western District of Texas
USDC No. 3:18-CV-15
Filed September 2, 2020
Before Smith, Ho, and Oldham, Circuit Judges.
A ndrew S. Oldham, Circuit Judge:
The question presented is whether to extend Bivens
to a new context. The district court said yes. We say no.
So we reverse and remand with instructions to dismiss
the claims against the federal officers.
2a
Appendix A
I.
On February 16, 2016, Jose Oliva attempted to enter
a Veterans Affairs (“VA”) hospital in El Paso, Texas. The
entrance to the hospital was protected by VA police and
metal detectors. While Oliva stood in line for the metal
detector, he spoke with one of the officers. Somehow
that conversation escalated into a physical altercation.
That ended when VA police wrestled Oliva to the ground
in a chokehold and arrested him. Oliva exhausted his
administrative remedies and then sued the federal officers
for damages under Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971). He
also brought claims against the United States under the
Federal Tort Claims Act (“FTCA”).
Oliva offered an affidavit with his version of the facts.
Oliva stated: “Upon entry into the [hospital], I emptied
my pockets and placed all items into an inspection bin as
required.” VA Officer Nivar asked for identification, and
Oliva “calmly explained . . . that it was in the inspection
bin with [his] other personal items.” Oliva says he complied
with all instructions from the VA police. Then, when Oliva
tried to walk through the metal detector, three VA police
officers (Nivar, Barahona, and Garcia) attacked him
without provocation.
The VA police officers offered a very different
version of the facts. Officers Nivar, Barahona, and Garcia
submitted materially identical affidavits. They stated
that Oliva “attempted to enter the [hospital] without
first clearing security.” The officers further averred that
3a
Appendix A
Oliva did not clear security because he failed to show
identification.
Security cameras captured the altercation on video,
so we consider “the facts in the light depicted by the
videotape.” Scott v. Harris, 550 U.S. 372, 381 (2007). The
video is inconsistent with Oliva’s account of the facts in
certain respects. For example, the video shows that Oliva
did not place “all” of his items in the inspection bin. He’s
plainly holding something in his hand when he attempts
to walk through the metal detector. Moreover, Officer
Nivar approaches Oliva with a pair of handcuffs before
Oliva attempts to walk through the metal detector. Thus,
the video undermines (if not contradicts) Oliva’s statement
that “[a]t no point before I was attacked, was I told that
I was going to be arrested or detained.”
After the altercation, Oliva sought medical treatment.
Oliva had two shoulder surgeries, and he also sought
treatment for post-traumatic stress disorder due to
nightmares and anxiety stemming from this event.
Relying on Bivens for his cause of action against the
officers, Oliva sought money damages for violations of,
inter alia, the Fourth Amendment.1
With respect to the Fourth Amendment claim, the
district court held that “this case does not present a new
Bivens context.” In the district court’s view, this case is
Oliva also claimed that the officers violated his rights under
the Fifth Amendment. The district court dismissed that claim at
the motion-to-dismiss stage. Nivar did not appeal it.
1
4a
Appendix A
just like Bivens because both cases involved excessiveforce, unreasonable-seizure claims. Therefore, the district
court held that Oliva has the right to recover damages
under Bivens if his claims are not barred by qualified
immunity. At summary judgment, the district court
agreed with Oliva that his claims against the officers are
not so barred. The officers timely appealed.
Our review is de novo. See Garcia de la Paz v. Coy,
786 F.3d 367, 371 (5th Cir. 2015). Our “jurisdiction over
qualified immunity appeals extends to elements of the
asserted cause of action that are directly implicated by
the defense of qualified immunity, including whether to
recognize new Bivens claims.” Ibid. (quotation omitted).
II.
In cases like this one, the Supreme Court has said
“the Bivens question” is “antecedent” to questions of
qualified immunity. Hernandez v. Mesa, 137 S. Ct. 2003,
2006 (2017). Courts confronting Bivens claims generally
“must ask two questions. First, do [the plaintiff’s] claims
fall into one of the three existing Bivens actions? Second,
if not, should we recognize a new Bivens action here?”
Cantú v. Moody, 933 F.3d 414, 422 (5th Cir. 2019). We say
no and no.
A.
Bivens was the product of an “ancien regime” that
freely implied rights of action. Ziglar v. Abbasi, 137 S.
Ct. 1843, 1855 (2017) (quoting Alexander v. Sandoval,
532 U.S. 275, 287 (2001)). That regime ended long ago. Id.
5a
Appendix A
at 1855–56; see also Sandoval, 532 U.S. at 287 (“Raising
up causes of action where a statute has not created them
may be a proper function for common-law courts, but not
for federal tribunals.” (quotation omitted)). Today, Bivens
claims generally are limited to the circumstances of the
Supreme Court’s trilogy of cases in this area: (1) manacling
the plaintiff in front of his family in his home and stripsearching him in violation of the Fourth Amendment, see
Bivens, 403 U.S. at 389–90; (2) discrimination on the basis
of sex by a congressman against a staff person in violation
of the Fifth Amendment, see Davis v. Passman, 442 U.S.
228 (1979); and (3) failure to provide medical attention to
an asthmatic prisoner in federal custody in violation of
the Eighth Amendment, see Carlson v. Green, 446 U.S.
14 (1980).
Virtually everything else is a “new context.” See
Abbasi, 137 S. Ct. at 1865 (explaining that “the newcontext inquiry is easily satisfied”). As the Supreme Court
has emphasized, our “understanding of a ‘new context’
is broad.” Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020).
That’s because “even a modest extension” of the Bivens
trilogy “is still an extension.” Abbasi, 137 S. Ct. at 1864.
And to put it mildly, extending Bivens to new contexts
is a “disfavored judicial activity.” Id. at 1857 (quotation
omitted).
The district court contravened these limitations. It
said, “[l]ike Bivens, this case involves allegations that
Defendants . . . violated [Oliva’s] Fourth Amendment right
to be free of excessive force.” That’s true but irrelevant.
“Courts do not define a Bivens cause of action at the
level of ‘the Fourth Amendment’ or even at the level
6a
Appendix A
of ‘the unreasonable-searches-and-seizures clause.’”
Cantú, 933 F.3d at 422. Indeed, it is not enough even if “a
plaintiff asserts a violation of the same clause of the same
amendment in the same way.” Ibid.
Instead, the question is whether this “case is different
in a meaningful way from previous Bivens cases decided
by [the Supreme] Court.” Abbasi, 137 S. Ct. at 1859. If so,
“then the context is new.” Ibid. As the Supreme Court
has explained:
Without endeavoring to create an exhaustive
list of differences that are meaningful enough to
make a given context a new one, some examples
might prove instructive. A case might differ in
a meaningful way because of the 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 1859–60.
This case differs from Bivens in several meaningful
ways. This case arose in a government hospital, not
7a
Appendix A
a private home. Cf. Bivens, 403 U.S. at 389. The VA
officers were manning a metal detector, not making
a warrantless search for narcotics. Cf. ibid. Judicial
guidance varies across these contexts. See Cantú, 933
F.3d at 423 (“‘Judicial guidance’ differs across the various
kinds of Fourth Amendment violations—like seizures by
deadly force, searches by wiretap, Terry stops, executions
of warrants, seizures without legal process (‘false
arrest’), seizures with wrongful legal process (‘malicious
prosecution’), etc.”). The dispute that gave rise to Oliva’s
altercation involved the hospital’s ID policy, not a narcotics
investigation. Cf. Bivens, 403 U.S. at 389. The cases thus
involve different legal mandates. Cf. Loumiet v. United
States, 948 F.3d 376, 382 (D.C. Cir. 2020) (Katsas, J.)
(contrasting enforcement of federal banking laws with
enforcement of federal narcotics laws in new-context
analysis). The VA officers did not manacle Oliva in front
of his family or strip-search him. Cf. Bivens, 403 U.S.
at 389. Contrariwise the narcotics officers did not place
Webster Bivens in a chokehold. See ibid. In short, Oliva’s
“claim involves different conduct by different officers from
a different agency.” Cantú, 933 F.3d at 423. We could go
on, but the point should be clear: the context is new.
B.
That leads to the second question: whether to engage
in the “disfavored judicial activity” of recognizing a new
Bivens action. Abbasi, 137 S. Ct. at 1857 (quotation omitted).
For decades, the Supreme Court has “consistently refused
to extend Bivens liability to any new context or new
category of defendants.” Corr. Servs. Corp. v. Malesko,
8a
Appendix A
534 U.S. 61, 68 (2001). And it recently reminded us, “for
almost 40 years, we have consistently rebuffed requests
to add to the claims allowed under Bivens.” Hernandez,
140 S. Ct. at 743.
The Court’s reluctance to extend Bivens respects
the separation of powers. “When evaluating whether
to extend Bivens, the most important question ‘is “who
should decide” whether to provide for a damages remedy,
Congress or the courts?’” Id. at 750 (quoting Abbasi, 137
S. Ct. at 1857). The answer to that question is usually
Congress. Ibid. So if any “special factors” give us “reason
to pause before applying Bivens in a new context or to
a new class of defendants,” then we should not extend
Bivens. Id. at 743; see also Canada v. United States, 950
F.3d 299, 309 (5th Cir. 2020) (“If any special factors do
exist, then courts must refrain from creating an implied
cause of action in that case.” (quotation omitted)).
In this case, special factors counsel against extending
Bivens. 2 First, Congress has designed an alternative
remedial structure. As the Abbasi Court observed, “if
there is an alternative remedial structure present in
Oliva asserts that the officers forfeited the “special factors”
issue by not raising it in their motion for summary judgement. Not
so. Because Bivens is a judicially crafted remedy, a court asked to
extend Bivens has a concomitant responsibility to “ask whether
there are any special factors that counsel hesitation about granting
the extension.” Hernandez, 140 S. Ct. at 743 (quotation omitted).
Moreover, the district court discussed “special factors” arguments
at length in its order denying Nivar’s motion to dismiss. And Oliva
has briefed the issue here. So both the district court and Oliva had
ample opportunity to address the issue.
2
9a
Appendix A
a certain case, that alone may limit the power of the
Judiciary to infer a new Bivens cause of action.” 137 S.
Ct. at 1858. Likewise, we have emphasized that “the
existence of a statutory scheme for torts committed by
federal officers” weighs against inferring a new cause of
action. Cantú, 933 F.3d at 423. Although an alternative
form of relief is not a necessary special factor, it may
be a sufficient one. See Abbasi, 137 S. Ct. at 1858. “And
when alternative methods of relief are available, a Bivens
remedy usually is not.” Id. at 1863.
Consider the scheme Congress created here. A
person in Oliva’s situation first proceeds through the VA’s
administrative process. See 28 U.S.C. § 2675 (conditioning
availability of an action for money damages against the
United States on administrative exhaustion of the claim).
Then he can bring his claims under the FTCA. See id.
§ 2680(h); Cantú, 933 F.3d at 423.
Oliva followed that process. He started by filing an
administrative complaint with the VA, which the VA
denied on July 20, 2017. He then sued the United States
under the FTCA, in addition to suing the individual VA
officers under Bivens. Oliva’s own conduct shows there is
an alternative remedial scheme for his claims.
Oliva cannot negate this special factor by arguing
that the FTCA doesn’t cover excessive-force claims. The
Supreme Court has been clear that the alternative relief
necessary to limit Bivens need not provide the exact
same kind of relief Bivens would. See, e.g., Minneci
v. Pollard, 565 U.S. 118, 129 (2012) (“State-law [tort]
remedies and a potential Bivens remedy need not be
10a
Appendix A
perfectly congruent.”). That the FTCA might not give
Oliva everything he seeks is therefore no reason to extend
Bivens. See Hernandez, 140 S. Ct. at 750 (“Congress’s
decision not to provide a judicial remedy does not compel
us to step into its shoes.”); cf. Sandoval, 532 U.S. at 286–87
(explaining that if “a cause of action does not exist,” then
“courts may not create one, no matter how desirable that
might be as a policy matter”).
Second, the separation of powers is itself a special
factor. See Abbasi, 137 S. Ct. at 1862. That is, we
must consider what Congress has done and what
Congress has left undone. With the FTCA, Congress
waived the United States’ sovereign immunity as
to some claims and not others. See Dolan v. U.S.
Postal Serv., 546 U.S. 481, 484– 85 (2006). Indeed,
“[t]he FTCA waives the United States’ sovereign immunity
for certain intentional torts committed by law enforcement
officers.” Millbrook v. United States, 569 U.S. 50, 54 (2013).
Yet Congress did not make individual officers statutorily
liable for excessive-force claims. This “silence of Congress
is relevant” to the special-factors inquiry. Abbasi, 137 S.
Ct. at 1862.
These special factors give us “reason to pause” before
extending Bivens. Hernandez, 140 S. Ct. at 743. In such
cases, the Supreme Court has consistently “reject[ed] the
request” to extend Bivens. Ibid. We do the same.
***
We REVERSE and REMAND with instructions to
dismiss the claims against the federal officers.
11a
Appendix
B
Appendix B — Order
of the United
States District
Court for the Western District of Texas, El Paso
Division, Filed August 20, 2019
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
EP-18-CV-00015-FM
JOSE L. OLIVA,
Plaintiff,
v.
UNITED STATES OF AMERICA; MARIO J. NIVAR;
HECTOR BARAHONA; and MARIO GARCIA,
Defendants.
ORDER DENYING MOTION
FOR SUMMARY JUDGMENT [ECF No. 80]
Before the court are “Defendants Mario J. Nivar,
Hector Barahon [sic], Mario Garcia’s Motion for Summary
Judgment” (“Motion”) [ECF No. 80], filed July 8, 2019 by
Mario Nivar (“Nivar”), Hector Barahona (“Barahona”),
and Mario Garcia (“Garcia”) (collectively, “Officers”); and
“Plaintiff’s Response to Defendants Nivar, Barahona, and
Garcia’s Motion for Summary Judgment” (“Response”)
[ECF No. 82], filed July 15, 2019 by Jose Oliva (“Plaintiff’).
12a
Appendix B
Based on the Motion, Response, and applicable law, the
Motion is DENIED.
I.
BACKGROUND
A. Factual Background
On February 16, 2016, Plaintiff visited the Veteran
Affairs Health Care System (“VA”).1 To enter the VA,
visitors are required to go through a metal detector and
run their personal belongings through a similar machine. 2
Upon Plaintiff getting in the security line, he started
to have a conversation with Nivar. 3 Nivar then approached
Plaintiff with handcuffs drawn.4 After more conversation,
Nivar pointed towards the metal detector. 5 As Plaintiff
approached the metal detector, an altercation occurred
“Plaintiffs Response to Defendants Nivar, Barahona, and
Garcia’s Motion for Summary Judgment” (“Resp.”), ECF No. 82, filed
July 15, 2019; “Affidavit of Jose L. Oliva” (“Oliva Aff.”) 1, Ex. A; see
“Defendants Mario J. Nivar, Hector Barahon [sic], Mario Garcia’s
Motion for Summary Judgment” (“Mot.”), ECF No. 80, filed July 8,
2019, “Affidavit of Mario J. Nivar” (“Nivar Aff.”) 1, Ex. 1; see also
“Defendant Hector Barahona’s Affidavit in Support” (“Barahona
Aff.”) 1, Ex. 2; Defendant Mario Garcia’s Affidavit in Support”
(“Garcia Aff.”) 1, Ex. 3.
1
Oliva Aff. 2 ¶ 7; see generally Mot., “Electronic Exhibit B”
(“Video Ex. B”), Ex. B.
2
3
Video Ex. B, at 00:25.
4
Id. at 00:53.
5
Id. at 01:00.
13a
Appendix B
between Nivar, Barahona, Garcia, and Plaintiff.6 Officers
then restrained Plaintiff on the ground using a chokehold.7
According to Plaintiff, he placed his identification
card in the inspection bin. 8 Plaintiff contends Nivar
was agitated and asked for his identification despite his
explanation that his identification was in the inspection
bin.9 Plaintiff asserts that after this discussion, Nivar
instructed him to walk through the metal detector, upon
which he was “attacked” and restrained on the ground.10
Plaintiff claims he did not resist the detention or arrest.11
Officers attest that arresting Plaintiff was warranted
as he “attempted to enter the facility without first clearing
security.”12 Officers claim Plaintiff did not provide his
driver’s license.13
Plaintiff filed suit against Officers and the United
States of America, bringing two claims under the Federal
Tort Claims Act (“FTCA”) 28 U.S.C. § 1346 et seq and a
6
Id. at 01:07.
7
Id. at 01:09.
8
Oliva Aff. 2 ¶ 5.
9
Id. at 2 ¶ 6.
10
Id. at 2 ¶ 7–8.
11
Id at 2 ¶ 9.
12
Nivar Aff. 1; Barahona Aff. 1; Garcia Aff. 1.
13
Id.
14a
Appendix B
Fourth Amendment claim under Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics14 (“Bivens”).15
B.
Parties’ Arguments
Officers assert they are entitled to qualified immunity
for claims brought under the FTCA.16 Officers also argue
summary judgment is warranted on the Bivens claim due
to qualified immunity.17
Plaintiff ripostes that he has established facts showing
Officers violated a constitutional right and the right
was clearly established at the time of the altercation.18
Accordingly, Plaintiff claims that summary judgment is
not warranted as genuine issues of material fact remain.19
II. LEGAL STANDARD
Summary judgment is proper where the pleadings,
discovery, and affidavits demonstrate there is “no genuine
dispute as to any material fact and the movant is entitled
14
403 U.s. 388.
“Plaintiff’s Original Complaint” (“Compl.”) 5, ECF No. 1,
filed Jan. 16, 2018.
15
16
Mot. 3–4.
17
Id. at 5–6.
18
Resp. 3.
19
Id.
15a
Appendix B
to judgment as a matter of law.”20 A dispute over a material
fact is genuine “when there is evidence sufficient for
rational trier of fact to find for the non-moving party.” 21
Substantive law defines which facts are material. 22
The party moving for summary judgment bears
the initial burden of identifying those portions of the
pleadings, discovery, and affidavits demonstrating the
absence of a genuine issue of material fact. 23 When
considering only admissible evidence in the pretrial
record, 24 the court will “view all facts in the light most
favorable to the non-moving party” and draw all factual
inferences in the nonmovant’s favor. 25 If the moving party
cannot demonstrate the absence of a genuine issue of
material fact, summary judgment is inappropriate. 26
Once the moving party has met its initial burden, the
nonmoving party must go beyond the pleadings and, by its
own affidavits or discovery, set forth specific facts showing
20
Fed. R. Civ. P. 56(a).
Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 323 (5th
Cir. 2002) (citation omitted).
21
22
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
23
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
24
Fowler v. Smith, 68 F.3d 124, 126 (5th Cir. 1995).
Cheatham v. Allstate Ins. Co., 465 F.3d 578, 582 (5th Cir.
2006) (per curiam) (citation omitted).
25
26
Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995).
16a
Appendix B
there is a genuine issue for trial.27 The nonmoving party’s
burden is not satisfied by the raising of “some metaphysical
doubt as to the material facts, by conclusory allegations,
by unsubstantiated assertions, or by only a scintilla of
evidence.”28 The court does not “in the absence of any proof
assume that the nonmoving party could or would prove the
necessary facts.”29 When reviewing the parties’ submissions,
the court does not weigh the evidence or determine the
credibility of the witnesses.”30 Once the nonmovant has had
the opportunity to make this showing, summary judgment
will be granted “if no reasonable juror could find for the
nonmovant.”31
III. DISCUSSION
A.
Officers Are Not Entitled to Qualified Immunity
for Claims under the FTCA
The FTCA permits a plaintiff to sue the United
States of America and not an individual employee. 32 Here,
Plaintiff asserts FTCA claims against the United States
Celotex, 477 U.S. at 324 (internal quotation marks and
citation omitted).
27
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en
banc) (per curiam) (internal quotation marks and citations omitted).
28
29
Id. at 1075 (emphasis removed).
30
Caboni, 278 F.3d 448, 451 (5th Cir. 2002) (citation omitted).
31
Id.
32
28 U.S.C. § 1346(b).
17a
Appendix B
under the FTCA. 33 Critically, Plaintiff does not bring a
FTCA claim against Officers. 34 Accordingly, Officers are
not entitled to summary judgment on Plaintiff’s FTCA
claims.
B. Officers Do Not Receive Qualified Immunity
for Plaintiff’s Bivens Claims
Government officials receive protection “from liability
for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of
which a reasonable person would have known.” 35 Courts
employ a two-prong analysis to assess whether an officer
may assert the privilege of qualified immunity. 36 The first
prong is whether the evidence, in the light most favorable
to the plaintiff, shows the officer violated the plaintiff’s
constitutional rights. 37 The second prong is whether the
officer’s actions were objectively reasonable in light of
clearly established law. 38 Both prongs must be satisfied. 39
Courts are “permitted to exercise their sound discretion
in deciding which of the two prongs of the qualified
33
Compl. 5.
34
Id.
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also
Ziglar v. Abbasi, 137 S. Ct. 1843, 1850 (2017).
35
36
Pearson v. Callahan, 555 U.S. 223, 232 (2009).
37
Id. at 232.
38
Id.
39
Id.
18a
Appendix B
immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.”40 However,
analyzing them in order is “often beneficial.”41
1.
Whether Plaintiff’s Constitutional Rights
Were Violated
The court looks to: (1) if there is a question of
material fact as to whether Plaintiff’s injury resulted
from excessive force; and (2) if that excessive force was
objectively unreasonable.42 The court does not consider
the officer’s subjective intent. 43 Plaintiff argues that
his constitutional right to be free of excessive force was
violated when Officers placed Plaintiff in a chokehold.44
Officers contend Plaintiff attempted to enter the VA
without authorization—justifying action.45
Courts analyze excessive force claims under the
“objective reasonableness standard.”46 This standard does
not employ hindsight to find the objective best course of
40
Id. at 236.
41
Id.
Cooper v. Brown, 844 F.3d 517, 522 (5th Cir. 2016); see
also Elizondo v. Green, 671 F.3d 506, 501 (5th Cir. 2012) (quoting
Collier v. Montgomery, 569 F.3d 214, 218 (5th Cir. 2009)).
42
43
Graham v. Connor, 490 U.S. 386, 397 (1989).
44
Resp. 7.
45
Mot. 6.
46
Graham, 490 U.S. at 397.
19a
Appendix B
action.47 Instead, the court considers the totality of the
circumstances “from the perspective of a reasonable
officer on the scene.”48 In Graham v. Connor, 49 the
Supreme Court outlined several factors to consider:
(1) the severity of the crime; (2) whether the suspect posed
an immediate threat to the safety of officers or others; and
(3) whether the suspect actively resisted. 50
A court cannot take the severity of the crime into
consideration if the plaintiff did not commit a crime. 51
Here, Plaintiff was charged with disorderly conduct—a
misdemeanor. 52 However, the record does not reflect any
evidence that Plaintiff was found guilty of disorderly
conduct. Being charged with a crime is not equivalent to
committing a crime. As Plaintiff was not convicted of a
crime, this factor weighs against qualified immunity.
There is also a question of material fact as to whether
Plaintiff represented a threat to officer or public safety.
Plaintiff attests that he was attempting to comply
with Officers’ orders and remained nonconfrontational
47
Id.
48
Id. at 396.
49
490 U.S. 386 (1989).
50
Id.
51
See Turmon v. Jordan, 405 F.3d 202, 207 (5th Cir. 2005).
52
Resp., “United States District Court Violation Notice” 1,
Ex. D.
20a
Appendix B
throughout the interaction.53 According to Officers, Plaintiff
attempted to gain unauthorized access to the VA facility
without providing identification.54 Officers seemingly argue
failing to present identification can be inferred to present
an immediate threat to officer or public safety.55
Furthermore, surveillance video of the incident
shows Nivar stepping forward towards Plaintiff while
displaying handcuffs. 56 Nivar did not handcuff Plaintiff,
but instead pointed towards the metal detector. 57 In
Plaintiff’s affidavit, he states that he was told to approach
the detector despite Officers not seeing his identification.58
Once Plaintiff reached the metal detector, an altercation
occurred. 59 During the altercation, Officers restrained
Plaintiff through a chokehold.60 Accordingly, a question of
material fact remains as to whether Plaintiff presented a
threat to officer or public safety.
Lastly, courts should look to whether the plaintiff
resisted arrest.61 Officers do not assert that Plaintiff
53
Oliva Aff. 2 ¶ 9.
54
Nivar Aff. 1; Barahona Aff. 1; Garcia Aff. 1.
55
Id.
56
Video Ex. B at 00:53.
57
Id. at 01:00.
58
Oliva Aff. 2 ¶ 7.
59
Video Ex. B at 01:07.
60
Id. at 01:09.
61
Graham v. Connor, 490 U.s. 386, 397 (1989).
21a
Appendix B
actively resisted arrest.62 Therefore, this factor also does
not support qualified immunity.
All three of the factors enumerated in Graham show
questions of material facts exist. Accordingly, when viewed
in the light most favorable to the non-moving party, a
genuine issue of material fact remains as to whether
Plaintiff’s constitutional rights were violated.
2.
Whether Nivar’s Actions Violated Clearly
Established Law
The second prong considers whether the officers’
conduct violated clearly established law.63 “If officers of
a reasonable competence could disagree on this issue,
immunity should be recognized.”64 This analysis is “highly
fact-specific.”65 The protection of qualified immunity can
be overcome through cases which are “directly on point.”66
If no case is directly on point, precedent must show
“beyond debate” that a constitutional violation occurred.67
62
See generally Nivar Aff.; see also Barahona Aff.; Garcia Aff.
63
Pearson v. Callahan, 555 U.S. 223, 232 (2009).
64
Malley v. Briggs, 475 U.s. 335, 341 (1986).
65
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015).
Darden v. City of Fort Worth, 880 F.3d 722, 732 (5th Cir.
2018); see also Ontiveros v. City of Rosenberg, 564 F.3d 379, 383 n.1
(5th Cir. 2009).
66
67
Darden, 880 F.3d at 732.
22a
Appendix B
In Darden v. City of Fort Worth,68 the Fifth Circuit
held that use of force is excessive where the officer
“strikes, punches, or violently slams a suspect who is
not resisting arrest.”69 In Darden, an officer choked and
pulled the plaintiff’s hands behind his back, despite the
plaintiff “purportedly complying with the officers’ orders
and not resisting arrest.” 70 The Fifth Circuit explained
that the law is “clearly established that violently slamming
or striking a suspect who is not actively resisting arrest
constitutes excessive use of force.” 71 While Darden is
particularly illustrative, the Fifth Circuit has regularly
held an officer may not use excessive force when the
individual is not resisting arrest or detention.72
Here, Plaintiff asserts Officers grappled and brought
him to the ground—something the video evidence bears
out.73 Plaintiff also claims Nivar restrained him with
a chokehold, despite not resisting the arrest.74 Officers
68
880 F.3d 722 (5th Cir. 2018).
69
Id. at 732.
70
Id. at 733.
71
Id.at 732.
Id. at 733; see also Cooper v. Brown, 844 F.3d 517, 524 (5th
Cir. 2016) (“Our caselaw makes certain that once an arrestee stops
resisting, the degree of force an officer can employ is reduced”);
Newman v. Guedry, 703 F.3d 757, 763 (5th Cir. 2012); Bush v.
Strain, 513 F.3d 492, 502 (5th Cir. 2008).
72
73
Video Ex. B 01:09–01:47.
74
Oliva Aff. 2 ¶ 8-9.
23a
Appendix B
challenge these allegations, asserting Plaintiff’s actions
gave rise to the use of force.75 When viewing the evidence
in the light most favorable to Plaintiff, Officers violated
clearly established law as determined by the Fifth Circuit
when they used excessive force on an unresisting suspect.76
Officers notably do not assert that Plaintiff resisted
arrest.77 This is critical as an officer who grapples and
chokes a suspect who is not actively resisting violated
clearly established law in Darden.78
When viewing the submitted evidence in the light most
favorable to Plaintiff, a question of material fact remains
as to whether Plaintiff’s Fourth Amendment rights were
violated. It is not the courts role to evaluate the evidence
or its credibility, only that it is sufficient to allow a juror to
reasonably find in favor of the non-moving party.79 Thus,
the protection of qualified immunity is defeated.
IV. CONCLUSION
Defendants Nivar, Barahona, and Garcia are not
entitled to qualified immunity on Plaintiff’s FTCA claims,
as no FTCA claims are filed against them. Additionally,
75
Nivar Aff. 1; Barahona Aff. 1; Garcia Aff. 1.
76
Darden v. City of Fort Worth, 880 F.3d 722, 732 (5th Cir.
2018).
77
See generally Nivar Aff.; Barahona Aff.; Garcia Aff.
78
Darden, 880 F.3d at 732.
79
Caboni v. General Motors Corp., 278 F.3d 448, 451 (5th
Cir. 2002).
24a
Appendix B
Plaintiff has provided sufficient evidence to defeat
summary judgment as to his Bivens claim.
Accordingly, it is HEREBY ORDERED that
“Defendants Mario J. Nivar, Hector Barahon [sic], Mario
Garcia’s Motion for Summary Judgment” [ECF No. 80]
is DENIED.
SO ORDERED.
SIGNED this 20 day of August, 2019.
/s/ Frank Montalvo
FRANK MONTALVO
UNITED STATES DISTRICT JUDGE
25a
Appendix
C
Appendix C — Order
of the United
States District
Court for the Western District of Texas, El Paso
Division, Filed January 8, 2019
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
EP-18-CV-00015-FM
JOSE L. OLIVA,
Plaintiff,
v.
UNITED STATES OF AMERICA; MARIO J. NIVAR;
HECTOR BARAHONA; and MARIO GARCIA,
Defendants.
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT
NIVAR’S MOTION TO DISMISS
Before the court is “Motion to Dismiss the Plaintiff’s
Original Complaint and Brief in Support, filed by
Defendant, Mario J. Nivar” (“Motion”) [ECF No. 30], filed
October 16, 2018 by Mario Nivar (“Nivar”); and “Plaintiff’s
Response to Defendant Mario J. Nivar’s Motion to Dismiss
Plaintiff’s Original Complaint and Brief in Support”
(“Response”) [ECF No. 40], filed November 8, 2018 by
Jose Oliva (“Plaintiff”). Based on the Motion, Response,
and applicable law, the Motion is DENIED IN PART and
26a
Appendix C
GRANTED IN PART.
I.
BACKGROUND
A.
Factual Background and Procedural History
Plaintiff has alleged the following facts.1 Plaintiff
visited the Veteran Affairs Health Care System (“VA”)
on February 16, 2016 for a scheduled appointment. 2 The
VA is located at 5001 N. Piedras St. in El Paso, Texas. 3 To
enter the VA, visitors are required to go through a metal
detector and run their personal belongings through a
similar machine.4 As Plaintiff entered the VA, VA Police
Officers Mario Garcia, Hector Barahona, and Nivar
(collectively, “Defendants”) instructed Plaintiff to empty
his pockets into an inspection bin and he complied. 5 Nivar
requested Plaintiff’s identification.6 Plaintiff explained he
could not show his identification, as it was in the inspection
bin.7 Defendants then instructed Plaintiff to walk through
the metal detector. 8
Plaintiff’s Original Complaint” (“Compl.”) 1, ECF No. 1,
filed Jan. 16, 2018.
1 “
2
Id. at 3 ¶ 10.
3
See id. at 2 ¶ 6.
4
Id. at 3 ¶ 10.
5
Id. at 3 ¶ 11
6
Id. at 3 ¶ 12.
7
Compl. 3 ¶ 12.
8
Id. at 3 ¶ 13.
27a
Appendix C
As Plaintiff attempted to follow the Defendants’
order, Plaintiff alleges Nivar placed him in a chokehold.9
Barahona restrained Plaintiff’s left arm and forced it
behind Plaintiff’s back.10 This resulted in a loud popping
sound.11 Plaintiff asserts he never resisted, raised his
voice, or attempted to confront Defendants.12 Defendants
pinned Plaintiff to the ground, secured him in handcuffs,
and detained him in a side room.13 Plaintiff was charged
with disorderly conduct.14
Plaintiff claims to have undergone shoulder surgery,
in addition to seeking treatment for difficulty swallowing,
ear pain, ear infection, and persistent hoarseness.15
Plaintiff also alleges to still suffer aggravated symptoms
of post-traumatic stress disorder.16
On January 16, 2018, Plaintiff filed suit against the
United States of America (“Government”) and Defendants,
bringing claims under the Federal Tort Claims Act
9
Id. at 3 ¶ 10.
10
Id. at 3 ¶ 14.
11
Id
12
Id. at 4 ¶ 17.
13
Comp. 4 ¶¶ 15–16.
14
Id. at 4 ¶ 17.
15
Id. at 4 ¶¶ 18–20.
16
Id. at 4 ¶¶ 18–20.
28a
Appendix C
(“FTCA”), 18 U.S.C. § 2671 et. seq. and Bivens.17 Nivar
moves to dismiss Plaintiff’s Bivens claim pursuant to
Federal Rule of Civil Procedure 12(b)(6).18
B. Parties’ Arguments
Nivar claims Plaintiff must fail as: (1) Plaintiff’s
claim is an inappropriate extension of Bivens; and
(2) qualified immunity bars any relief.19 Nivar argues
this is an inappropriate extension of Bivens because it
is limited to only a few Constitutional violations by the
Supreme Court’s holding in Ziglar v. Abbasi, 20 and the
alleged facts would extend this scope. 21
In the alternative, he argues this case includes special
factors which caution extending Bivens. 22 Specifically,
Nivar focuses on national security concerns, which
previous decisions have held warrant curtailing Bivens
remedies. 23 As Plaintiff may receive relief under the
17
Id. at 5 ¶¶ 21–22, 3 ¶ 10.
See “Motion to Dismiss the Plaintiff’s Original Complaint
and Brief in Support, filed by Defendant, Mario J. Nivar” (“Mot.”),
ECF No. 30, filed Oct. 16, 2018.
18
19
Mot. 2 ¶ 2, 9 ¶ 19.
20
137 S. Ct. 1843 (2017).
21
Mot. 3 ¶ 6.
22
Id.
23
Id. at 7 ¶¶ 14–15 (citing to Hernandez v. Mesa, 885 F.3d
811, 814 (5th Cir. 2018)).
29a
Appendix C
FTCA, Nivar contends Bivens should not be extended to
include this specific alleged constitutional violation. 24
Finally, he claims that the privilege of qualified
immunity renders him immune from liability. 25 In support,
Nivar argues his actions did not violate clearly established
law. 26 Nivar also claims Plaintiff’s pleaded facts, while
conceivable, do not present a plausible set of circumstances
in which excessive force was applied. 27
Plaintiff asserts his claim of excessive force is not
a novel application of Bivens. 28 Plaintiff seemingly
incorporates this argument for his Fifth Amendment
claims, but provides no further detail or specificity. 29
Plaintiff opposes Nivar’s argument that the allegations
are only conceivable, explaining that officers can act
simultaneously to violate an individual’s constitutional
rights. 30 Finally, Plaintiff argues that Nivar’s use of a
chokehold was in violation of clearly established law and
its use was objectively unreasonable. 31
24
Id. at 9 ¶ 18.
25
Id. at 9 ¶ 19.
26
Id. at 10 ¶ 20.
27
Mot. 12 ¶ 23.
“Plaintiff’s Response to Defendant Mario J. Nivar’s Motion
to Dismiss Plaintiff’s Original Complaint and Brief in Support”
(“Resp.”) 5, ECF No. 40, filed Nov. 8, 2018.
28
29
See generally Mot.
30
Resp. 4–5.
31
Id. at 4.
30a
Appendix C
II. APPLICABLE LAW
A.
Motion to Dismiss Pursuant to Rule 12(b)(6)
Federal Rule of Civil Procedure Rule 12(b)(6) allows
dismissal of a complaint for “failure to state a claim
for which relief can be granted.” 32 “The central issue is
whether, in the light most favorable to the plaintiff, the
complaint states a valid claim for relief.” 33 To survive a
motion to dismiss, a plaintiff must plead “enough facts
to state a claim to relief that is plausible on its face.” 34
“The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility
that a defendant has acted unlawfully.” 35 “[F]acial
plausibility” exists “when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.”36 Therefore, a complaint is not required to set out
“detailed factual allegations,” but it must provide “more
than labels and conclusions, and a formulaic recitation of
the elements of a cause of action.” 37 Although the court
32
Fed. R. Civ. P. 12(b)(6).
Great Plains Trust Co. v. Morgan Stanley Dean Witter &
Co., 313 F.3d 305, 313 (5th Cir. 2002) (internal quotation marks and
citation omitted); see also In re Katrina Canal Breaches Litig.,
495 F.3d 191, 205 (5th Cir. 2007).
33
34
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
35
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
36
Id. (citing Twombly, 550 U.S. at 556).
37
Twombly, 550 U.S. at 555.
31a
Appendix C
must accept well-pleaded allegations in a complaint as
true, it does not afford conclusory allegations similar
treatment. 38
III.
DISCUSSION
A.
Fourth Amendment Bivens Claim
In Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 39 the Supreme Court held that
individuals could bring an implied cause of action under
the Fourth Amendment. 40 There, the plaintiff sought
recovery for damages caused when federal narcotics
performed a warrantless search and seizure of his home.41
He further alleged officers used excessive force in effecting
the arrest.42 The Court found the plaintiff could recover
against a federal agent acting under color of federal
authority where the agent’s conduct was unconstitutional.43
The Court has extended this implied cause of action to
alleged violations of the Fifth Amendment 44 and Eighth
See Kaiser Aluminum & Chem. Sales, Inc., 677 F.2d 1045,
1050 (5th Cir. 1982) (citing Associated Builders, Inc. v. Ala. Power
Co., 505 F.2d 97, 100 (5th Cir. 1974)).
38
39
403 U.S. 388 (1971).
40
See id.
41
Id. at 389–90.
42
Id. at 389.
43
Id. at 411.
44
Davis v. Passman, 442 U.S. 228, 248–49 (1979).
32a
Appendix C
Amendment.45 However, the Court has since directed
that extending Bivens claims are a disfavored judicial
activity46 and has “consistently refused to extend Bivens
to any new context or new category of defendants.”47 The
Fifth Circuit has elaborated that Bivens excessive force
claims have two distinct categories: (1) claims with special
factors; and (2) “garden variety” claims.48
Where a Bivens claim arises in a new context, a court
considers special factors which may counsel hesitation.49
Absent Congressional directive, courts are “reluctant to
intrude” into domains reserved for the legislative and
executive branches. 50 Among these Special factors is
national security. 51 For instance, in Hernandez v. Mesa, 52
45
Carlson v. Green, 446 U.S. 14, 19 (1980).
Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017) (citing to
Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)).
46
Id. (citing to Corectional Services Corp. v. Malesko, 534
U.S. 61, 68 (2001)).
47
Hernandez v. Mesa, 885 F.3d 811, 814 (5th Cir. 2018); see also
De La Paz v. Coy, 786 F.3d 367, 375 (5th Cir. 2015) (“Consequently,
this court’s past cases have not decided whether Bivens extends
to claims arising from civil immigration apprehensions and
detentions, other than those alleging unconstitutionally excessive
force”).
48
49
Abbasi, 137 S. Ct. at 1857 (citing to Carlson, 446 U.S. at 18).
50
Id.
51
Id. at 1861.
52
885 F.3d 811 (5th Cir. 2018).
33a
Appendix C
the Fifth Circuit found that national security concerns
can defeat Bivens claims against Border Patrol Agents. 53
Specifically, these national security concerns involved an
international element contained in the job duties and the
real danger of terrorism. 54 The Fifth Circuit highlighted
how Bivens liability may “undermine the Border Patrol’s
ability to perform duties essential to national security.”55
Despite this, the Fifth Circuit was clear that domestic
cases would be different, reasoning that “the defining
characteristic of this case is that it is not domestic.”56
Therefore, claiming national security concerns has a much
less risk of abuse. 57
Courts also consider whether there are “sound
reasons to think Congress might doubt the efficacy or
necessity of a damages remedy as part of the system for
enforcing the law and correcting a wrong.”58 An additional
consideration is whether an alternative remedy exists to
limit the availability of a Bivens remedy. 59
53
Id. at 823.
54
See generally id.
55
Id. at 819.
56
Id.
57
Id.
58
Ziglar v. Abbasi, 137 S. Ct. 1843, 1858 (2017).
59
Id.
34a
Appendix C
Like Bivens, this case involves allegations that
Defendants, including Nivar, violated his Fourth
Amendment right to be free of excessive force.60 Bivens
also involved a claim of excessive force, as seen where
the complaint alleged the officers used unreasonable
force during an unlawful arrest. 61 Additionally, the
Fifth Circuit’s holding that there are “garden variety”
Bivens excessive force claims62 show Plaintiff’s claim may
proceed, absent special considerations.
Nivar asserts this case is a new application of Bivens,
as VA Police Officers are a new class of defendants.63 This
argument is an overreach. Like the federal officers in Bivens,
VA Police Officers are federal law enforcement officers.64
Bivens is not contingent on the specific category of federal
law enforcement officers involved in the alleged constitutional
violation. Rather, Bivens looks at whether the official was
simply federal law enforcement or a high-level decisionmaker.65
60
Resp. 5.
Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388, 389 (1971).
61
62
Hernandez v. Mesa, 885 F.3d 811, 814 (5th Cir. 2018).
63
Mot. 6 ¶ 11.
U.S. Dept. of Veterans Affairs, Office of Security and Law
Enforcement, Our Mission, https://www.osp.va.gov/OSandLE_
Overview.asp (accessed on Jan. 2, 2019) (describing the VA Police’s
mission: “Deliver professional law enforcement and security
services, while maintaining law and order, and the protection of
persons and property on VA campuses and building’s [sic] under
the jurisdiction of the Department of Veterans Affairs.”).
64
Bivens, 403 U.S. at 411; see also Ziglar v. Abbasi, 137 S.
Ct. 1843, 1854 (2017).
65
35a
Appendix C
In support of his contention that VA Police Officers
should be considered a separate class of defendants,
he attempts to draw support from Abbasi, where highlevel government officials were held to be a new class.66
Abbasi dealt with two groups of defendants: (1) the
Attorney General, Federal Bureau of Investigation
Director, and the Immigration and Naturalization Service
Commissioner; and (2) the federal facilities warden and
assistant warden.67 Neither of those two groups are similar
to a VA Police Officer. VA Police Officers simply do not have
a similar level of discretion, nor would their behavior be
chilled in a similar manner. A VA Police Officer acting in
the manner alleged is no different than any other federal
law enforcement officer effectuating the law. Therefore,
this case does not present a new Bivens context.
Nivar further alleges since Plaintiff has the potential
for relief under the FTCA, a Bivens remedy is not
available.68 This is incorrect. The FTCA is the exclusive
remedy of specific claims enumerated by Congress.69
However, the FTCA expressly does not extend to general
constitutional excessive force claims.70 Excessive force is
not a new Bivens cause of action, and potential alternative
remedial structures do not prevent this claim from moving
forward.
66
Abbasi, 137 S. Ct. at 1858.
67
Id. at 1853.
68
Mot. 9 ¶ 18.
69
18 U.S.C. § 2679.
18 U.S.C. § 2679(b)(2)(A); see also Hernandez v. Mesa, 885
F.3d 811, 830 (5th Cir. 2018).
70
36a
Appendix C
Lastly, Nivar argues that even if there are no
alternative remedial structures, Bivens should not be
extended if special factors counsel hesitation.71 Nivar
asserts that the principle of Separation of Powers should
give this court pause, explicitly national security.72 In
support, Nivar cites to Hernandez v. Mesa.73
In Hernandez, the Fifth Circuit held that Bivens did
not extend to a Border Patrol agent because of national
security concerns.74 Defendant’s reliance on Hernandez is
misguided. Hernandez is careful to acknowledge that in
domestic cases, there is a danger for abusing the phrase
“national security.” 75 Hernandez distinguishes itself by
focusing on the international nature of defending the
border. The Fifth Circuit explained:
“We hold that this is not a garden variety
excessive force case against a federal law
enforcement officer. The transnational aspect
of the facts presents a “new context” under
Bivens, and numerous “special factors” counsel
against federal courts’ interference with the
Executive and Legislative branches of the
federal government.76
71
Wilkie v. Robbins, 551 U.S. 537, 550 (2007).
72
Mot. 7 ¶ 14.
73
885 F.3d 811 (5th Cir. 2018).
74
Hernandez v. Mesa, 885 F.3d 811, 819–20 (5th Cir. 2018)
75
Id.
76
Id. at 814.
37a
Appendix C
The present case is purely a domestic matter. No such
international element exists here, nor is it even suggested
that an international element could exist.
Simply put, policing a VA Hospital entrance is not
comparable to patrolling our country’s international
borders, a controlling fact in Hernandez. Border security
is an important factor, as the Supreme Court reasoned
it is “much more difficult to believe that congressional
inaction was inadvertent” due to the national policy
focus.77 As Nivar’s argument goes beyond the scope of
national security, it is simply too broad. National security
does grant federal law enforcement broad powers; yet it
is not a magic wand that need only be waved to garner
unfettered discretion. Therefore, Nivar’s argument that
national security is a special factor barring Plaintiff’s
claim must fail.
A Bivens claim for excessive force is not a novel claim,
and there are no special considerations which cause these
facts to extend Bivens. Therefore, Plaintiff has properly
pleaded a Bivens claim for excessive force in violation of
the Fourth Amendment.
B. Fifth Amendment Bivens Claim
Plaintiff also seeks a Bivens remedy for violations of
his Fifth Amendment rights.78 Courts have not generally
77
Ziglar v. Abbasi, 137 S. Ct. 1843, 1862 (2017).
78
Compl. 5 ¶ 26.
38a
Appendix C
applied Bivens in the context of the Fifth Amendment.79
Accordingly, Plaintiff’s Bivens claim for a violation of the
Fifth Amendment must fail.
Furthermore, Plaintiff’s Fifth Amendment claim is
vague and devoid of detail. 80 It is unclear if this claim is
meant to cover Plaintiff’s detention, Nivar’s use of force,
or both. Simply claiming Fifth Amendment injuries does
not suffice. Even if Plaintiff provided more detail, Plaintiff
may not pursue a Fifth Amendment Bivens claim, as it
falls outside the scope of Bivens. Therefore, no Bivens
remedy is available, and this claim is dismissed.
C.
Qualified Immunity
As Plaintiff’s Fourth Amendment claim survives the
Bivens challenge, the court considers whether Nivar is
entitled to qualified imniunity. 81 Government officials
receive protection “from liability for civil damages insofar
as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known.”82
Courts employ a two-prong analysis to assess whether
an officer may assert the privilege of qualified immunity. 83
The lone Fifth Amendment Bivens claim was for gender
discrimination. See Davis v Passman, 442 U.S. 228 (1979).
79
80
Compl. 5 ¶ 26.
81
Mot. 9 ¶ 19.
82
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
83
Pearson v. Callahan, 555 U.S. 223, 232 (2009).
39a
Appendix C
Courts are “permitted to exercise their 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.”84 However,
analyzing them in order is “often beneficial.”85 The first
prong is whether the evidence, in the light most favorable
to the plaintiff, shows the officer violated the plaintiff’s
constitutional rights. 86 The second prong is whether the
officer’s actions were objectively reasonable in light of
clearly established law. 87 Both prongs must be satisfied
to defeat qualified immunity. 88
1.
Whether Plaintiff’s Constitutional Rights
Were Violated
The court looks to whether Plaintiff pleaded facts
sufficient to show an injury resulted from excessive
force and whether that excessive force was objectively
unreasonable. 89 The court does not consider subjective
intent in its analysis.90 In this case, Plaintiff alleged that he
84
Id. at 236.
85
Id.
86
Id. at 232.
87
Id.
88
Id.
Cooper v. Brown, 844 F.3d 517, 522 (5th Cir. 2016); see also
Elizondo v. Green, 671 F.3d 506, 501 (5th Cir. 2012) (quoting Collier
v. Montgomery, 569 F.3d 214, 218 (5th Cir. 2009)).
89
90
Graham v. Connor, 490 U.S. 386, 397 (1989).
40a
Appendix C
was injured,91 which came about as a result of Defendants
applying force towards him.92
Courts analyze excessive force claims under the
“objective reasonableness standard.” 93 As officers deal
with rapidly evolving situations, this standard does not
employ hindsight to find the objective best course of
action.94 Instead, the court considers the totality of the
circumstances “from the perspective of a reasonable
officer on the scene.” 95 In Graham v. Connor,96 the court
outlined several factors to consider: (1) the severity of
the crime; (2) whether the suspect posed an immediate
threat to the safety of officers or others; and (3) whether
the suspect actively resisted.97
The severity of the crime cannot be taken into
consideration if the plaintiff did not commit a crime. 98
Here, Plaintiff was charged with disorderly conduct—a
Compl. 4 ¶¶ 18–20. The injuries alleged include: shoulder
surgery, difficulty swallowing, ear pain, ear infection, persistent
hoarseness, and symptoms of post-traumatic stress disorder.
91
92
Id. at 3 ¶ 10, 14.
93
Graham, 490 U.S. at 397.
94
Id.
95
Id. at 396.
96
490 U.S. 386 (1989).
97
Id.
98
See Turmon v. Jordan, 405 F.3d 202, 207 (5th Cir. 2005).
41a
Appendix C
misdemeanor—although he contends no crime was
committed.99 However, Plaintiff was never convicted of
disorderly conduct. As Plaintiff was not convicted of a
crime, this factor favors Plaintiff.
Nivar casts Plaintiff’s assertion as implausible,
implying that, because Defendants acted simultaneously
to restrain Plaintiff, there must have been some criminal
activity.100 The pleadings are devoid of allegations to
support such a bald assertion. When viewing the pleadings
in the light most favorable to the Plaintiff, the alleged
events are well within the realm of plausibility. This factor
thus favors the Plaintiff.
Similarly, there is nothing to suggest the officers felt
there was a threat to an officer or building safety. In his
complaint, Plaintiff’s asserts he was attempting to comply
with Defendants’ orders and remained nonconfrontational
throughout the interaction.101 Simply complying with
officer commands while remaining nonconfrontational is
not a threat to safety. There are no present allegations of
resistance. Plaintiff has pleaded that he was not actively
resisting,102 a fact which is plausible. The mere fact
that Plaintiff was charged with a crime does not justify
assuming the arrest was preceded by wrongdoing.
99
Resp. 10; see also Compl. 4 ¶ 17.
100
Mot. 12 ¶ 23.
101
Compl. 3 ¶¶ 13–14.
102
Id. at 3–4 ¶¶ 13–17.
42a
Appendix C
All three of the factors enumerated in Graham favor
Plaintiff. Accordingly, Plaintiff has sufficiently pleaded
facts to support a claim for a violation of his Fourth
Amendment rights.
2.
Whether Nivar’s Actions Violated Clearly
Established Law
The second prong considers whether the officers’
conduct violated clearly established law.103 “If officers of
a reasonable competence could disagree on this issue,
immunity should be recognized.”104 This analysis is “highly
fact-specific.”105 The protection of qualified immunity can
be overcome through cases which are “directly on point.”106
If no case is directly on point, precedent must show
“beyond debate” that a constitutional violation occurred.107
In Darden v. City of Fort Worth,108 the Fifth Circuit
held that use of force is excessive where the officer “strikes,
punches, or violently slams a suspect who is not resisting
arrest.”109 In Darden, an officer choked and pulled the
103
Pearson v. Callahan, 555 U.S. 223, 232 (2009).
104
Malley v. Briggs, 475 U.S. 335, 341 (1986).
105
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015).
Darden v. City of Fort Worth, 880 F.3d 722, 732 (5th Cir.
2018); see also Ontiveros v. City of Rosenberg, 564 F.3d 379, 383
n.1 (5th Cir. 2009).
106
107
Darden, 880 F.3d at 732.
108
880 F.3d 722 (5th Cir. 2018).
109
Id. at 732.
43a
Appendix C
plaintiff’s hands behind his back, despite the plaintiff
“purportedly complying with the officers’ orders and not
resisting arrest.”110 The Fifth Circuit has further stated
the law has “clearly established that violently slamming
or striking a suspect who is not actively resisting arrest
constitutes excessive use of force.”111 Accordingly, it is
clearly established that an officer may not use excessive
force when the individual is not resisting.112
Here, Plaintiff has alleged he was grappled violently
and slammed to the ground.113 Plaintiff also alleges Nivar
restrained him with a chokehold, despite him not resisting
the arrest.114 Accordingly, when viewing the allegations
in the light most favorable to the Plaintiff, Nivar’s actions
violated clearly established law, thereby defeating his
defense of qualified immunity.
3.
CONCLUSION
Plaintiff has pleaded a plausible Bivens claim for
excessive force in violation of the Fourth Amendment.
No such Bivens remedy exists for Plaintiff’s ethereal
Fifth Amendment claim. Finally, Nivar is not entitled
to qualified immunity, as the complaint alleges sufficient
110
Id. at 733.
111
Id. at 732.
112
Id. at 733.
113
Compl. 3–4 ¶¶ 14–15.
114
Id. at 3 ¶ 13, 4 ¶ 16.
44a
Appendix C
facts that Plaintiff’s Fourth Amendment rights were
violated and Nivar’s action violated clearly established
law. Accordingly, the court enters the following orders:
1.
It is HEREBY ORDERED that the “Motion
to Dismiss the Plaintiff’s Original Complaint
and Brief in Support, filed by Defendant, Mario
J. Nivar” [ECF No. 30] is GRANTED as to
Plaintiff’s Fifth Amendment Bivens claims.
2.
It is FURTHER ORDERED that the “Motion to
Dismiss the Plaintiff’s Original Complaint and
Brief in Support, filed by Defendant, Mario J.
Nivar” [ECF No. 30] is DENIED as to the Fourth
Amendment Bivens claim.
SO ORDERED.
SIGNED this 8 day of January, 2019.
/s/ Frank Montalvo
FRANK MONTALVO
UNITED STATES DISTRICT JUDGE
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