Petition for Writ of Certiorari — Gerald L. Ferreyra, et al., Petitioners v. Nathaniel Hicks

APPENDIX

TABLE OF APPENDICES

Appendix A

Opinion of the United States Court of

Appeals for the Fourth Circuit, Hicks v.

Ferreyra, No. 22-1339 (Mar. 29, 2023) ........ App-1

Appendix B

Opinion of the United States District

Court for the District of Maryland,

Hicks v. Ferreyra, No. 8:16-cv-02521PWG (Jan. 28, 2022) ................................. App-37

Appendix C

Order and Judgment of the United States

District Court for the District of

Maryland, Hicks v. Ferreyra, No. 8:16-cv02521-PWG (Jan. 28, 2022)....................... App-87

Appendix D

Order of the United States Court of

Appeals for the Fourth Circuit Denying

the Petition for Rehearing En Banc,

Hicks

v.

Ferreyra,

No.

22-1339

(May 26, 2023) ........................................... App-89

Appendix E

Excerpts of Trial Transcripts, Hicks v.

Ferreyra, No. 8:16-cv-02521-PWG

July 6, 2021......................................... App-90

July 7, 2021......................................... App-94

App-1

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

________________

No. 22-1339

________________

NATHANIEL HICKS,

Plaintiff-Appellee,

v.

OFFICER GERALD L. FERREYRA,

in his individual capacity;

OFFICER BRIAN A. PHILLIPS,

in his individual capacity,

Defendants-Appellants.

________________

PUBLISHED

Argued: January 27, 2023

Decided: March 29, 2023

Document 49

Appeal from the United States District Court for the

District of Maryland, at Greenbelt. Paul W. Grimm,

Senior District Judge. (8:16-cv-02521-PWG)

________________

OPINION

Before HARRIS, Circuit Judge, and MOTZ and

KEENAN, Senior Circuit Judges.

________________

Affirmed by published opinion. Senior Judge Keenan

wrote the opinion, in which Judge Harris and Senior

Judge Motz joined.

App-2

***

[Counsel block omitted]

BARBARA MILANO KEENAN, Senior Circuit Judge:

Nathaniel Hicks, a now-retired Special Agent

with the United States Secret Service, filed a civil suit

against two United States Park Police officers, Gerald

Ferreyra and Brian Phillips, under Bivens v. Six

Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971). Hicks asserted that the

officers violated Hicks’s rights under the Fourth

Amendment by unlawfully seizing him during two

traffic stops. A jury found the officers liable for Hicks’s

emotional injuries resulting from the constitutional

violations and awarded Hicks a total of $205,000 in

compensatory damages and $525,000 in punitive

damages. The district court entered final judgment in

accordance with the jury verdict, and later denied the

officers’ post-trial motions seeking judgment as a

matter of law or a new trial.

Upon our review, we affirm the district court’s

judgment. Hicks presented a cognizable Bivens claim

because his claim is not meaningfully different from

the claim asserted in Bivens. See Ziglar v. Abbasi, 137

S. Ct. 1843, 1859 (2017). Both cases involved

allegations of unjustified, warrantless seizures in

violation of the Fourth Amendment committed by

federal “line” officers conducting routine police work.

Also, the officers were not entitled to qualified

immunity. They violated Hicks’s Fourth Amendment

rights by significantly prolonging the initial stop

without justification, and by Officer Phillips’s action

initiating a second, unjustified stop. This

constitutional right to be free from such unlawful

App-3

seizures was clearly established at the time the

seizures occurred.

We further conclude that the officers did not

suffer

prejudice

when

Hicks

addressed

indemnification by the government during rebuttal

closing argument because the officers earlier had

asserted during their closing argument that they

would suffer personal financial loss if a verdict were

rendered against them. And finally, Hicks presented

sufficient evidence of emotional injury to support the

compensatory damage award, and the punitive

damages award was not excessive.

I.

We state the facts in the light most favorable to

Hicks, the prevailing party at trial. See Weiner v. AXA

Equitable Life Ins. Co., 58 F.4th 774, 784 (4th Cir.

2023). On July 11, 2015, around 6 a.m., Nathaniel

Hicks, a special agent with the United States Secret

Service (Secret Service) 1 was parked in his unmarked

car on the shoulder of the Baltimore-Washington

Parkway in Maryland. At that time, Hicks was

waiting to join a motorcade to protect the Secretary of

the Department of Homeland Security.

Defendant Gerald Ferreyra, an officer with the

United States Park Police (USPP), who is White, saw

Hicks’s car and stopped to perform a “welfare check”

to ensure that the driver did not need assistance (the

first stop). Officer Ferreyra, who was in his USPP

uniform, approached the vehicle’s passenger side and

Hicks retired from his position with the Secret Service in

December 2016.

1

App-4

observed that Hicks, who is Black, appeared to be

asleep. After seeing a handgun in a “holstered case”

laying on the front passenger seat, Officer Ferreyra

pointed his service weapon at Hicks, screamed at

Hicks, and ordered him not to reach for his weapon.

Hicks complied, raising his hands in the air and

explaining that he was a Secret Service agent. At

Officer Ferreyra’s request, Hicks displayed his Secret

Service credentials, which included a photograph of

him. As Officer Ferreyra took possession of Hicks’s

credentials, Ferreyra continued to appear “very

agitated to the point of . . . spitting at the mouth while

he was shaking profusely with the handgun pointed in

[Hicks’s] direction.” At this point, Officer Ferreyra

removed Hicks’s weapon from the car and returned to

his patrol vehicle.

When Hicks explained to Officer Ferreyra that he

had parked his car while waiting to join a protective

motorcade, Ferreyra responded that this was “one

motorcade that [Hicks] was not going to be

participating in.” Officer Ferreyra repeatedly cursed

at Hicks, telling him to shut the “f” up and that

Ferreyra was not an “f’[in]g rookie.”

Despite Officer Ferreyra’s initial concern

regarding the handgun, Ferreyra was aware after

examining Hicks’s credentials that Hicks was

authorized to carry the gun. However, instead of

releasing Hicks, Officer Ferreyra called for additional

USPP officers to report to the scene.

Defendant Brian Phillips, another USPP officer

who is White, arrived shortly thereafter. Officer

Phillips understood from Officer Ferreyra that Hicks

was not a suspect in a criminal matter. Officer Phillips

App-5

“interrogate[d]” Hicks about why he was in the “Park

Police district” and directed Hicks to “sit still and don’t

move.” Hicks described Officer Phillips as acting “very

belligerent and upset.”

After Officer Ferreyra returned to Hicks’s vehicle,

Ferreyra told Hicks that he was not allowed to “go[]

anywhere” until the USPP supervisor arrived. Officer

Ferreyra stated at trial that he was following a USPP

practice requiring officers to call a supervisor to “the

scene” before releasing an individual who had

displayed a weapon. However, when the jury

considered this testimony in answering special

interrogatories, the jury found that Officer Ferreyra

was not “follow[ing] a customary [USPP] practice.”

The motorcade to which Hicks had been assigned

passed the scene around 6:40 a.m. At some point after

the motorcade had passed, a USPP supervisor,

Sergeant Wallace, approached Hicks’s car while Hicks

was talking on his cell phone with his Secret Service

supervisor. At Hicks’s supervisor’s suggestion, the two

supervisors spoke to each other on Hicks’s cell phone.

After this conversation, Sergeant Wallace informed

Hicks that he was free to leave, and Officer Ferreyra

returned Hicks’s weapon and credentials. In total, the

officers had detained Hicks for about an hour after

confirming that he was a Secret Service Agent

authorized to carry a weapon.

Within minutes after Hicks drove away, Officer

Phillips initiated a second traffic stop involving Hicks

(the second stop). Officer Phillips stated that he

stopped Hicks because he saw the car “swerve[] over

into the right shoulder,” and because he saw the car’s

driver talking on his cell phone. The jury did not credit

App-6

Officer Phillips’s testimony, finding in a special

interrogatory that Phillips did not observe Hicks

driving erratically or talking on his mobile phone. The

jury further found in answering an additional special

interrogatory that Officer Phillips knew that it was

Hicks’s vehicle before initiating the traffic stop.

After approaching Hicks’s car, Officer Phillips

immediately told Hicks that he was being “mouthy.”

Officer Phillips demanded Hicks’s license and

registration and detained him for a few minutes before

ultimately releasing him without issuing a ticket.

Hicks filed the present action in the district court

against Officers Ferreyra and Phillips under Bivens v.

Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), alleging that the USPP

officers violated his Fourth Amendment rights when

(1) they unlawfully prolonged the first stop, and

(2) Officer Phillips unlawfully seized Hicks a second

time. The district court denied the officers’ motion for

summary judgment asserting qualified immunity. The

officers later filed an interlocutory appeal, challenging

the immunity ruling and also arguing for the first time

on appeal that Hicks’s claim under Bivens was barred

by the Supreme Court’s decision in Ziglar v. Abbasi,

137 S. Ct. 1843, 1859 (2017) (clarifying the framework

used to determine when a Bivens implied cause of

action is available).

We dismissed for lack of jurisdiction the officers’

challenge to the district court’s ruling on qualified

immunity because the officers’ arguments focused on

factual, not legal, disputes. Hicks v. Ferreyra, 965 F.3d

302, 313 (4th Cir. 2020). We also held that the officers

had forfeited their Bivens argument in the

App-7

interlocutory appeal by not raising it in the district

court. Id. at 309, 312.

On remand during the jury trial, the officers

moved for judgment as a matter of law under Federal

Rule of Civil Procedure 50(a), arguing that a Bivens

remedy was not permitted under the Supreme Court’s

holding in Abbasi and that the officers were entitled

to qualified immunity. The district court denied the

motion before submitting the case to the jury.

The jury found in Hicks’s favor, concluding that

both officers acted under color of law and violated

Hicks’s Fourth Amendment rights during the first

stop. The jury also found that Officer Phillips violated

Hicks’s Fourth Amendment rights in conducting the

second stop.

Based primarily on Hicks’s testimony about his

resulting emotional distress, which we describe in

detail below, the jury awarded Hicks $80,000 in

compensatory damages against Officer Ferreyra, and

$125,000 in compensatory damages against Officer

Phillips. The jury also awarded Hicks $225,000 in

punitive damages against Officer Ferreyra, and

$300,000 in punitive damages against Officer Phillips,

finding that the officers acted with malice or reckless

indifference to Hicks’s rights.

The officers filed post-trial motions for judgment

as a matter of law and for a new trial or remittitur

under Rules 50(b) and 59(a). In addition to renewing

their arguments raised in their Rule 50(a) motion

addressing Bivens and qualified immunity, the

officers also argued that they were entitled to a new

trial on three grounds discussed in more detail below:

App-8

(1) the jury improperly was influenced by

impermissible discussion of indemnification during

Hicks’s rebuttal closing argument; (2) the

compensatory damages award was not supported by

the evidence; and (3) the punitive damages award was

excessive. The district court denied the officers’

motions and entered final judgment in accordance

with the jury verdict.

The officers now appeal, challenging each ground

on which the district court denied their post-trial

motions. We discuss each argument in turn.

II.

The officers challenge on two grounds the district

court’s denial of their renewed motion for judgment as

a matter of law under Rule 50(b): (1) the court’s

conclusion that Hicks presented a viable claim under

Bivens; and (2) the court’s denial of the officers’ claim

of qualified immunity. We review de novo the district

court’s rulings. EEOC v. Consol. Energy, Inc., 860 F.3d

131, 142 (4th Cir. 2017). In conducting this review, we

view “the evidence in the light most favorable to the

prevailing party.” FDIC v. Bakkebo, 506 F.3d 286, 294

(4th Cir. 2007).

A. Bivens

We first address the officers’ argument that the

district court erred by concluding that Hicks

presented a cognizable claim under Bivens. In Bivens,

the Supreme Court recognized an implied right of

action in which “victims of a constitutional violation

by a federal agent have a right to recover damages

against the official in federal court.” Carlson v. Green,

446 U.S. 14, 18 (1980) (discussing Bivens, 403 U.S.

App-9

388). At issue in Bivens was whether a plaintiff was

entitled to seek damages in a civil action after federal

narcotics officers conducted a warrantless search of

his apartment, arrested him for alleged narcotics

violations, and later subjected him to a visual strip

search. Bivens, 403 U.S. at 389. The plaintiff alleged

that the officers violated the Fourth Amendment by

conducting the warrantless search of his home and

seizure of his person without probable cause and by

using excessive force. Id.

After Bivens, the Supreme Court has recognized

in two other cases an implied right of action against a

federal agent committing a constitutional violation,

Davis v. Passman, 442 U.S. 228 (1979) (involving an

alleged violation of equal protection under the Fifth

Amendment Due Process clause), and Carlson v.

Green, 446 U.S. 14 (1980) (involving an alleged

violation of the Eighth Amendment’s Cruel and

Unusual Punishments clause). However, as the Court

recognized in Abbasi, since issuing these decisions, the

Court has “refused to extend Bivens” to permit a cause

of action in any case involving “any new context or new

category of defendants.” 137 S. Ct. at 1857 (explaining

that “expanding the Bivens remedy is now a

‘disfavored’ judicial activity” (citation omitted)). In

drawing this line, the Court has emphasized that

when a different context arises or different categories

of defendants are involved, Congress “most often”

should decide whether to provide a damages remedy.

Id.; see also Hernández v. Mesa, 140 S. Ct. 735, 741

(2020); Egbert v. Boule, 142 S. Ct. 1793, 1802 (2022).

In Abbasi, the plaintiffs alleging a cause of action

under Bivens were non-citizens who were in the

App-10

United States without authorization and who had

been arrested and detained for several months

because they were “of interest” in investigations into

the terrorist attacks that occurred on September 11,

2001. 137 S. Ct. at 1852-53. The plaintiffs filed suit

against several high-level Executive Branch officers

responsible for establishing “detention polic[ies]”

related to the September 11 investigation, as well as

against the facility wardens for their various roles in

imposing restrictive and abusive conditions of

confinement. Id. at 1853-54, 1858. Seeking a Bivens

remedy, the plaintiffs alleged both Fourth and Fifth

Amendment violations. Id. at 1853-54. In declining to

allow a Bivens remedy for the plaintiffs’ detention

policy claims, the Court explained that these claims

challenged “the confinement conditions” imposed on

non-citizens “pursuant to a high-level executive policy

created in the wake of a major terrorist attack” and,

thus, qualified as a “new Bivens context.” Id. at 1860;

see also id. at 1865 (holding that “the new-context

inquiry is easily satisfied” for the plaintiffs’ Fifth

Amendment claim against the warden). The Court

further stated that separation-of-powers concerns

drove its decision to “retain” the scope of Bivens to the

“common and recurrent sphere of law enforcement.”

Id. at 1856-57.

To assist courts in evaluating actions asserted

under Bivens, the Court articulated a two-step inquiry

in Abbasi for determining whether a Bivens remedy is

available in a given case. Id. at 1857-60; see Egbert,

142 S. Ct. at 1803. First, a court must assess whether

the case presents “a new Bivens context.” Abbasi, 137

S. Ct. at 1859; Tun-Cos v. Perrotte, 922 F.3d 514, 522

(4th Cir. 2019). Although a “radical difference is not

App-11

required” to conclude that a case presents “a new

Bivens context,” Tun-Cos, 922 F.3d at 523, the

differences between the case at issue and Bivens must

be “meaningful,” Abbasi, 137 S. Ct. at 1859-60.

In discussing whether a case presents a “new

context” that is “meaningfully different” from the

existing scope of Bivens remedies, the Court in Abbasi

provided a “non-exhaustive list of potentially

meaningful differences.” Annappareddy v. Pascale,

996 F.3d 120, 133 (4th Cir. 2021). The Court stated

that a “meaningful difference” may be found based on:

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 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.

Abbasi, 137 S. Ct. at 1860.

“If the context is not new . . . then a Bivens remedy

continues to be available.” Tun-Cos, 922 F.3d at 52223. “But if the context is new, courts must move to the

second step of the Bivens analysis” to evaluate

whether “special factors” suggest that Congress is

better equipped to determine whether a damages

action should be permissible. Annappareddy, 996 F.3d

at 133. Recently, the Court explained that these two

steps “often resolve to a single question: whether there

App-12

is any reason to think that Congress might be better

equipped to create a damages remedy.” Egbert, 142 S.

Ct. at 1803. With these considerations in mind, we

turn to consider the officers’ arguments.

The officers contend that Hicks’s claim presented

a new Bivens context, despite the fact that both Hicks

and the plaintiff in Bivens similarly alleged a Fourth

Amendment violation involving a warrantless seizure.

The officers emphasize that unlike in Bivens, Hicks’s

home was not searched, and the officers did not arrest

Hicks or use excessive force against him. The officers

further observe that Bivens did not involve an officer’s

allegedly unlawful and prolonged seizure of a citizen

during a traffic stop. Finally, the officers maintain

that the present case involved “a bizarre, inter-agency

squabble

within

the

[E]xecutive

[B]ranch,”

constituting a special factor and a reason that

Congress might be better equipped to create a

damages remedy in such a situation. We disagree with

the officers’ arguments.

We conclude that the present case can be resolved

at the first step of the Abbasi inquiry. After

considering whether the present case presents “a new

Bivens context” within the meaning of Abbasi, 137 S.

Ct. at 1859, we answer “no.” In reaching this

conclusion, we rely on the Supreme Court’s clear

explanation in Abbasi that its severe narrowing of the

Bivens remedy in other contexts does not undermine

the vitality of Bivens in the warrantless-search-andseizure context of routine criminal law enforcement.

137 S. Ct. at 1856.

The Court took great care in making this point in

Abbasi, emphasizing that its holding restricting the

App-13

availability of a Bivens remedy was “not intended to

cast doubt on the continued force, or even the

necessity, of Bivens in the search-and-seizure context

in which it arose.” Id. Placing even further emphasis

on this distinction, the Court stated that “[t]he settled

law of Bivens in this common and recurrent sphere of

law enforcement, and the undoubted reliance upon it

as a fixed principle in the law, are powerful reasons to

retain it in that sphere.” Id. at 1857. Thus, while the

decision in Abbasi effectively may have halted the

expansion of a Bivens remedy to cases outside the

context of the three, existing decisions recognizing

such a remedy, Abbasi reaffirmed that a Bivens

remedy remains available to address violations of the

Fourth Amendment involving unjustified, warrantless

searches and seizures by line officers performing

routine criminal law enforcement duties.

To highlight this point, we observe that the

present case is materially different from the Fourth

Amendment context we considered in Annappareddy,

996 F.3d 120. There, we observed in our analysis that

courts do not evaluate a potential Bivens cause of

action “at the level of ‘the Fourth Amendment’ or even

at the level of ‘the unreasonable-searches-andseizures clause.’” Id. at 135 (quoting Cantú v. Moody,

933 F.3d 414, 422 (5th Cir. 2019)). After observing

that Bivens involved a claim grounded on the right to

be free from warrantless searches and seizures, we

distinguished that context from the context of

searches authorized by a warrant, which “implicate[]

a distinct Fourth Amendment guarantee—that ‘no

Warrants shall issue, but upon probable cause.’” Id. at

136-37 (quoting U.S. Const. amend IV). We explained

that the decision to issue a warrant involves different

App-14

aspects of police work, including “informationgathering and case-building activities,” which are

different from the warrantless apprehension,

detention, and other issues presented in Bivens. Id. at

136 (citation omitted). Thus, we held in Annappareddy

that the search of a corporate office with a warrant

presented a new Bivens context, one that “would pose

a greater risk of intruding on the investigatory and

prosecutorial functions of the executive branch.” Id. at

136-37.

In contrast to the factual and procedural context

of Annappareddy, the case before us does not involve

a search with a warrant, the exercise of prosecutorial

judgment, or possible intrusion into “the investigatory

and prosecutorial functions of the executive branch.”

Id. As we previously observed and we now hold, the

present case involves “not an extension of Bivens so

much as a replay” of the same principles of

constitutional

criminal

law

prohibiting

the

unjustified, warrantless seizure of a person. Hicks,

965 F.3d at 311.

As in Bivens, Hicks filed suit “to hold accountable

only line-level investigative officers, not high-ranking

officials.” Annappareddy, 996 F.3d at 135. The claims

against the officers in both the present case and in

Bivens were based on the officers’ discrete actions and

did not implicate “large-scale policy decisions” or other

general directives or statutes. Abbasi, 137 S. Ct. at

1862. Instead, the officers’ actions here and in Bivens

were taken in purported execution of principles of

criminal law well-informed by decades of judicial

guidance regarding the Fourth Amendment

prohibition on the warrantless seizure of citizens

App-15

without reasonable, articulable suspicion or probable

cause. 2 See id.

Even though the seizure in Bivens culminated in

a custodial arrest, in contrast to the unlawful

detentions that occurred in the present case, the

seizures in both cases were subject to the same

objective inquiry of reasonableness mandated by

Fourth Amendment jurisprudence. Compare Bivens,

403 U.S. at 389 (describing allegations as including an

“arrest . . . made without probable cause”), and United

States v. Gray, 137 F.3d 765, 769 (4th Cir. 1998)

(explaining that probable cause “is an objective

standard”), with United States v. Johnson, 734 F.3d

270, 275 (4th Cir. 2013) (“A traffic stop is reasonable

. . . if it is justified by probable cause or reasonable

suspicion.”), United States v. Williams, 808 F.3d 238,

245-46 (4th Cir. 2015) (observing that an officer must

have “reasonable suspicion” to extend an otherwise

completed traffic stop), and United States v. Miller, 54

F.4th 219, 228 (4th Cir. 2022) (recognizing that

reasonable

suspicion

requires

an

“objective

justification” for believing that criminal activity is

afoot). While a temporary detention can be justified by

a lesser showing than probable cause, namely, by

2 The fact that Bivens involved two additional types of Fourth

Amendment claims, namely, the warrantless search of a home

and the excessive use of force, does not constitute a meaningful

difference for our purposes. Nothing in Abbasi or later cases

suggests that a plaintiff asserting a cause of action under Bivens

must match, in number and in kind, all the claims raised in that

case. Accordingly, we reject the officers’ suggestion that because

the present case did not involve a search of Hicks’s home and the

officers did not use excessive force in unlawfully detaining Hicks,

the present case necessarily constitutes a new Bivens context.

App-16

establishing reasonable, articulable suspicion of

criminal activity, see Navarette v. California, 572 U.S.

393, 396 (2014), this threshold showing does not alter

the constitutional right at issue or its application to

the routine enforcement of criminal laws. And,

although the Supreme Court has articulated a clear

purpose of not expanding the reach of Bivens, the

Court has not signaled an intent to prohibit its

application in cases involving less egregious

intrusions of an individual’s right to be free from

unjustified, warrantless seizures.

As we previously have observed, courts, including

this Court, have applied “Bivens to Fourth

Amendment claims arising from police traffic stops

like this one.” Hicks, 965 F.3d at 311-23 (collecting

cases). The officers in the present case confronted

nothing more than established principles of Fourth

Amendment law with extensive judicial guidance

regarding the right of individuals to be free from

unjustified, warrantless seizures. See Abbasi, 137 S.

Ct. at 1860; see infra pp. 19-21.

We reject the officers’ assertion that authorizing a

Bivens cause of action in the present case risks

intrusion into the functioning of the Executive

Branch. The officers employed by the USPP were

engaged in routine law enforcement measures. Hicks

was subjected to unlawful detentions that had nothing

to do with an “inter-agency squabble within the

[E]xecutive [B]ranch.” In fact, as the jury specifically

found in its answers to the special interrogatories, the

officers were not following a USPP policy when they

called for a supervisor to respond to the scene. In

short, nothing about Hicks’s claim provides a reason

App-17

to conclude that “Congress might be better equipped”

to determine whether to allow this civil action. 3

Egbert, 142 S. Ct. at 1803.

For these reasons, we hold that the unlawful

seizures at issue in the present case do not present a

new Bivens context and, thus, that Hicks’s claims are

cognizable under Bivens. See Tun-Cos, 922 F.3d at

522-23. Accordingly, we conclude that the district

court did not err in denying the officers’ Rule 50(b)

motion on this ground.

B. Qualified Immunity

We turn to consider the officers’ assertion that the

district court erred by denying their claim of qualified

3 We reject the officers’ assertion that we should recognize as a

special factor that Hicks had available to him “alternative

remedies.” The officers fail to identify any alternative remedy

available to Hicks for the constitutional violations and instead

cite only that a meeting “evidently took place” between a Secret

Service supervisor and the inspection division of the Secret

Service. Additionally, we reject as meritless the officers’

contention that permitting a Bivens claim here will result in an

“onslaught of Bivens claims” based on federal officers’ welfare

checks and traffic stops “gone awry.” There is nothing in the

record to support this speculation.

And finally, the officers argue that Hicks’s claim potentially

implicated national security by asserting, for the first time on

appeal, that Hicks was stopped “near the headquarters of the

National Security Agency.” See Egbert, 142 S. Ct. at 1806 n.3

(explaining that courts have “‘a concomitant responsibility’ to

evaluate any grounds that counsel against Bivens relief”

(emphasis added) (citation omitted)). We conclude that the

officers’ post-hoc contention is meritless, because it rests purely

on coincidental proximity with no relevance to the facts or

constitutional violations at issue.

App-18

immunity. The doctrine of qualified immunity

“balances two important interests,” namely, the need

to hold accountable public officials who exercise power

irresponsibly, and the need to shield officials who

perform duties responsibly from “harassment,

distraction, and liability.” Wilson v. Prince George’s

County, 893 F.3d 212, 219 (4th Cir. 2018) (quoting

Pearson v. Callahan, 555 U.S. 223, 231 (2009)). The

burden of establishing the affirmative defense of

qualified immunity rests on the party seeking to

invoke it. Id.

In considering whether the officers met their

evidentiary burden, we ordinarily employ a two-step

inquiry. We first consider whether the facts, as found

by the jury, established that the officers’ conduct

violated Hicks’s constitutional rights. Saucier v. Katz,

533 U.S. 194, 201 (2001); Pearson, 555 U.S. at 232. If

the record shows that an officer violated one or more

of these constitutional rights, we will evaluate under

the second prong whether any such rights were

“clearly established” at the time of the officers’

conduct. Id.

The Fourth Amendment protects individuals from

unreasonable seizures. U.S. Const. amend. IV. A

limited detention, including an investigatory stop or a

traffic stop for a suspected violation of law, is a

“seizure” subject to Fourth Amendment protections

and requires, at a minimum, “reasonable suspicion” of

criminal activity. Heien v. North Carolina, 574 U.S.

54, 60 (2014) (citing Brendlin v. California, 551 U.S.

249, 255-59 (2007)); Navarette, 572 U.S. at 397.

“[R]easonable suspicion exists when law enforcement

officers [have] a particularized and objective basis for

App-19

suspecting the person stopped of criminal activity.”

United States v. Singh, 363 F.3d 347, 355 (4th Cir.

2004) (quotation marks and citation omitted). The

Supreme Court has made clear that even if a limited

detention is justified at its inception, a stop becomes

unlawful if prolonged beyond the time necessary to

effectuate the stop’s purpose. Illinois v. Caballes, 543

U.S. 405, 407 (2005); Rodriguez v. United States, 575

U.S. 348, 354-55 (2015); see also United States v.

Sharpe, 470 U.S. 675, 686 (1985) (explaining that in

assessing whether a detention is too long to be

justified as an investigative stop, courts consider

whether the time was necessary to conduct a diligent

investigation to confirm or dispel suspicions).

The officers do not dispute that the Fourth

Amendment protects individuals from unreasonable

seizures of their person. Instead, the officers assert

that the prolonged detention during the first stop to

bring a supervisor to the scene was justified, and that

no precedent placed them on notice that their conduct

was unreasonable. The officers also maintain that

given the “unusual circumstances” involving an

encounter between USPP officers and a Secret Service

agent, it would not have been clear to a reasonable

officer that it was unlawful to detain Hicks during the

first stop for nearly an hour until a USPP supervisor

arrived. With regard to the second stop by Officer

Phillips, the officers merely rely on facts rejected by

the jury in their answers to the special interrogatories.

We disagree with the officers’ arguments.

The jury’s findings in the special interrogatories,

which the officers do not challenge, make plain the

officers’ violation of Hicks’s Fourth Amendment

App-20

rights. The first stop began when Officer Ferreyra

conducted a “welfare check” on the well-being of the

driver, Hicks, in a car parked on the side of a highway.

Even if we assume that Officer Ferreyra’s observation

of the gun on the front passenger seat gave rise to an

objectively reasonable suspicion of criminal activity,

that justification ceased when Ferreyra confirmed

that Hicks, as a Secret Service agent, was authorized

to carry a firearm. See Sharpe, 470 U.S. at 686.

Moreover, as the jury found, the USPP did not have a

customary practice that a supervisor come to the scene

before an officer could release an individual who had

displayed a weapon. Thus, the prolonged first

detention of nearly an hour after any justification

ceased plainly violated Hicks’s Fourth Amendment

right to be free from unreasonable seizures.

Rodriguez, 575 U.S. at 354; Caballo, 543 U.S. at 407;

see United States v. Hill, 852 F.3d 377, 381 (4th Cir.

2017).

The jury’s special interrogatory responses

likewise demonstrate that Officer Phillips violated

Hicks’s Fourth Amendment rights by initiating the

second stop. 4 The jury found that Officer Phillips knew

that Hicks was driving the car before initiating the

stop, and rejected Phillips’s only proffered

justifications for the stop, namely, that he had

4 With respect to the second stop, the officers argue, for the first

time on appeal, that even if Officer Phillips initiated the stop

based on a mistaken belief that Hicks was driving erratically,

“seizures based on mistakes of fact can be reasonable.” Heien, 574

U.S.at 61. We decline to consider this argument because it was

not preserved below. Muth v. United States, 1 F.3d 246, 250 (4th

Cir. 1993).

App-21

“observed a motorist driving erratically and talking on

his mobile phone.” Without a lawful basis to initiate

the second stop, Officer Phillips violated Hicks’s right

to be free from an unjustified detention. See Singh,

363 F.3d at 355. Because the evidence and jury

findings showed that the officers’ conduct during the

first and second stops violated Hicks’s Fourth

Amendment right to be free from unlawful seizures,

we turn to consider whether that right was clearly

established when the seizures occurred.

The inquiry into whether a constitutional right is

“clearly established” requires defining the right at

issue. Halcomb v. Ravenell, 992 F.3d 316, 319-20 (4th

Cir. 2021). The Supreme Court has cautioned against

defining a right with “a high level of generality,”

particularly in the context of a Fourth Amendment

claim. Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018)

(citation omitted). “However, a ‘general constitutional

rule may apply with obvious clarity even though the

very action in question has not previously’” been

addressed. Halcomb, 992 F.3d at 320 (quoting

Thompson v. Virginia, 878 F.3d 89, 98 (4th Cir. 2017));

Wilson, 893 F.3d at 222 (explaining that we look to

general principles to hold that a right is clearly

established in “obvious case[s]” of Fourth Amendment

violations).

The “key inquiry” is not whether a court has

“considered identical factual circumstances and held

that an officer’s conduct violated particular

constitutional rights,” but whether officers within our

jurisdiction have been provided fair warning, with

sufficient specificity, that their actions would qualify

as a deprivation of an individual’s rights. Betton v.

App-22

Belue, 942 F.3d 184, 193-94 (4th Cir. 2019) (citing

Wilson, 893 F.3d at 221). With these principles in

mind, the question before us is whether it was clearly

established in July 2015 that, after a lawfully initiated

traffic stop, an officer could continue to detain an

individual, and detain that individual a second time,

after the officer’s suspicion of a possible crime had

been resolved in the detainee’s favor and the officer

lacked any new basis to justify the detention.

In light of the above-stated precedent establishing

the Fourth Amendment violations, we have little

trouble concluding that settled law provided fair

warning to the officers that their actions would

constitute a deprivation of Hicks’s rights during both

the first and second stops. And, contrary to the

officers’ contention, Hicks’s employment with the

Secret Service did not alter this established law or

bear in any way on Hicks’s right to be free from an

unlawful seizure of his person. Additionally, as found

by the jury in answering the special interrogatories,

the officers were not following “a customary practice”

of the USPP by requesting a supervisor’s presence

before releasing Hicks during the first stop.

Accordingly, the officers’ emphasis on the “unusual

circumstance[]” of the encounter with a Secret Service

agent was irrelevant to the “obvious clarity” of the

right at issue here. Halcomb, 992 F.3d at 320. Indeed,

the officers testified that they had received training

and understood that they could not detain an

individual without justification in violation of the

Fourth Amendment. We therefore affirm the district

court’s conclusion that the officers were not entitled to

qualified immunity.

App-23

III.

We next address the officers’ argument that the

district court erred in denying their motion for a new

trial because: (1) the officers allegedly suffered

prejudice from the indemnification information

presented to the jury during Hicks’s rebuttal closing

argument; (2) the evidence was insufficient to support

the award of compensatory damages; and (3) the

amount of punitive damages was excessive. When a

district court denies a motion for a new trial, we

employ a deferential abuse-of-discretion standard,

reversing the court’s judgment only in “exceptional

circumstances.” Minter v. Wells Fargo Bank, N.A., 762

F.3d 339, 346 (4th Cir. 2014) (citation omitted).

A court “abuses its discretion when it acts

arbitrarily or irrationally, fails to consider judicially

recognized factors constraining its exercise of

discretion, relies on erroneous factual or legal

premises, or commits an error of law.” United States v.

Dillard, 891 F.3d 151, 158 (4th Cir. 2018) (citation

omitted). “A district court may grant a new trial only

if the verdict: (1) is against the clear weight of the

evidence; (2) is based upon false evidence; or (3) will

result in a miscarriage of justice.” Consol. Energy, Inc.,

860 F.3d at 145.

A. Indemnification

The officers contend that the jury was “improperly

influenced by inadmissible indemnification evidence”

presented during Hicks’s rebuttal closing argument.

Before addressing the officers’ argument on this issue,

we describe the relevant portions of each party’s

App-24

closing arguments and the district court’s ruling on

this issue.

During the officers’ closing argument, their

counsel described the financial burden that each

officer allegedly would suffer if the jury returned a

verdict for Hicks. Defense counsel stated that “Hicks

ultimately is seeking to put a vacuum cleaner up to

[the officers’] bank account[s].” Defense counsel also

stated that Hicks’s claim was not “against the United

States” or the USPP, but was against the two officers

“personally,” placing their personal bank accounts “at

risk,” and affecting “two people’s families.”

After these comments by the officers’ counsel,

Hicks’s counsel argued to the court that defense

counsel “opened the door” regarding whether the

officers personally would be liable for a damages

award and requested permission to “say something to

the jury about indemnification and that a judgment

would not come out of [the officers’] pockets.” Hicks’s

counsel also noted to the district court an

interrogatory answer in which the officers had

acknowledged that the government could indemnify

them against a damage award. In response, defense

counsel clarified that the officers would not be

“automatically indemnified,” and would need to

request indemnification from the federal government.

The district court responded that “neither is it

absolutely the truth that” the officers would have “to

pay [a judgment] out of their own pocket[s].” The court

therefore stated that it would permit Hicks’s counsel

to read the interrogatory and answer to the jury.

During rebuttal closing argument, Hicks’s counsel

stated that “there was a question about who would

App-25

cover the judgment in this case. Defendants are not

personally covering the judgments in this case. Their

families or whatever defense counsel said are not at

risk. This is not a vacuum cleaner to their personal

bank accounts. That statement was wrong.” After the

officers objected to these statements, the court

directed Hicks’s counsel to read the interrogatory

question and answer. Hicks’s counsel complied:

The question is, “If any person or entity may

be liable to satisfy all or part of a possible

judgment in this action or to indemnify or

reimburse for payments made to satisfy any

judgment in this action, describe the terms of

any such agreement or arrangement.”

And the sworn response was, “The U.S.

Government will cover any liability held

against Officer Ferreyra and Officer Phillips

as long as he was acting within the scope of

his employment during the pertinent times.”

Defense counsel did not make any further objections.

During deliberations, the jury submitted a

question to the court asking whether the officers

would be “paying directly” any damages award or

whether “the government [would] be paying?” The

parties agreed with the district court’s proposed

response, in which the court instructed that (1) the

jury had been informed that the officers stipulated

that they were “acting under color of law” during the

two stops, and (2) the jury had been read an

interrogatory answer on the issue of indemnification.

In the officers’ motion for a new trial, they argued,

as they do on appeal, that the district court erred in

App-26

permitting Hicks’s counsel to read the interrogatory

answer regarding indemnification and instead should

have provided a curative instruction. The officers also

argued that the interrogatory answer read to the jury

was incomplete because it omitted the first portion of

the answer: “While Ofc. Ferreyra has no personal

knowledge responsive to this [interrogatory], the

undersigned [counsel] understands that” the federal

government “will cover any liability.”

In rejecting these arguments, the district court

observed that defense counsel raised the question in

the first instance of who would pay a judgment by

making “multiple highly-charged emotional remarks”

suggesting that the officers would bear financial

liability for any judgment, without any supporting

evidence for these “untrue” statements. The court held

that defense counsel’s statements improperly

“appeal[ed] to the jury for sympathy.” Thus, the

district court concluded that even though evidence of

indemnification generally is not admissible, defense

counsel’s remarks gave the jury “a wrong impression”

that required “cur[ing].” See Lawson v. Trowbridge,

153 F.3d 368, 379 (7th Cir. 1998) (observing that

indemnification evidence is not typically permitted

but holding that such evidence should have been

permitted after the opposing party submitted evidence

that the party could not afford to pay damages).

The district court also observed that the officers

did not ask for a curative instruction or object to the

interrogatory answer when it was read. The court

further noted that the substance of the interrogatory

answer was not altered by the omitted statement that

Officer Ferreyra lacked personal knowledge of

App-27

indemnification by the government. Thus, the district

court concluded that the officers did not suffer

prejudice or a miscarriage of justice and denied their

request for a new trial under Rule 59(a).

We hold that the district court did not abuse its

discretion in this regard. In addition to the sound

analysis offered by the district court, we observe that

the officers “concede[d]” on appeal that their

statements regarding the officers’ personal bank

accounts “may have been objectionable and warranted

a curative instruction.” But the officers did not proffer

a curative instruction or object to the interrogatory

answer on the grounds that Hicks’s counsel had

omitted part of the answer. Nor did the officers object

to the court’s answer to the jury’s question about

payment of a damages award, or to the court’s action

informing the jury that the officers had stipulated that

they were acting “under color of law.” See Dennis v.

Gen. Elec. Corp., 762 F.2d 365, 367 (4th Cir. 1985)

(explaining that a motion for a new trial should not be

granted when the movant fails to object to the “alleged

impropriety”). In view of this record, we cannot say

that the district court acted “arbitrarily or

irrationally” in permitting Hicks’s counsel to read a

portion of the interrogatory answer in response to

defense counsel’s objectionable statements regarding

the officers’ personal financial burden. See Dillard,

891 F.3d at 158.

B. Damages

Finally, the officers challenge the district court’s

denial of their motion under Rule 59(a) for a new trial

or for remittitur on the grounds that (1) the

compensatory damages award was not supported by

App-28

the evidence, and (2) the punitive damages award was

excessive. Before addressing these arguments, we

describe the evidence presented regarding Hicks’s

injuries, which primarily rested on his own testimony.

Hicks stated that he feared for his life at the

beginning of the first encounter with Officer Ferreyra

and continued to feel “terrified” even after Ferreyra

walked away from Hicks’s car. Hicks also testified that

he felt belittled by the prolonged detention and by the

officers cursing at him. Hicks related that he felt alone

and helpless, being a solitary Black male confronted

by White officers and not knowing what might happen

during the encounter. In addition, according to Hicks,

this was the first time during his 20-year career that

he was unable to complete a work assignment.

Hicks further testified that he continued to be

emotionally upset as a result of the events that day.

According to Hicks, this emotional toll caused him to

have trouble sleeping, and to suffer impaired

relationships with his family members and colleagues.

Hicks also described how the incidents made him

fear for his family’s safety by explaining that the

encounters with the officers could have escalated if he

had not remained calm. He stated that he was

frightened to think about what might have happened

if his son or daughter had been stopped by the officers.

Hicks further stated that he sought psychological

counseling for the first time in his life due to his

distress but that, because of his job travel

requirements, he had attended only two sessions.

Hicks also presented testimony from one witness

who corroborated Hicks’s emotional distress, Miltom

App-29

Wilson, then-Deputy Assistant Director of the Secret

Service, Office of Protective Operations. Wilson

observed Hicks about six weeks after the stops and

described his altered appearance and demeanor,

stating that Hicks had lost weight and was distressed

and subdued, with a “look of anguish on his face.”

When Wilson asked Hicks what was wrong, Hicks

described the encounters with the officers. Wilson

later observed a further decline in Hicks’s demeanor

and emotional state, and stated that the incident with

the officers “was weighing on [Hicks] more and more

as time went on.”

After the close of the evidence, the jury was

instructed that if it found that either officer violated

Hicks’s constitutional rights, it should “determine an

amount of money that is fair compensation” for Hicks’s

damages proved by a preponderance of the evidence

and caused by the officers’ “allegedly wrongful

conduct.” The jury further was told that it could award

compensatory damages for pain, suffering, or mental

anguish that Hicks experienced as a result of the

officers’ actions. And the jury was instructed that if

Hicks suffered a deprivation of his constitutional

rights but did not sustain any resulting injury, the

jury may “award nominal damages.” Regarding the

availability of punitive damages, the jury was

instructed to consider the degree to which the officers

“should be punished” for any wrongful conduct and

whether an award would deter the officers or others

from committing future wrongful acts.

The jury awarded Hicks $80,000 in compensatory

damages and $225,000 in punitive damages against

Officer Ferreyra, and $125,000 in compensatory

App-30

damages and $300,000 in punitive damages against

Officer Phillips, for a total award of $205,000 in

compensatory damages and $525,000 in punitive

damages. We first turn to address the officers’

arguments regarding the compensatory damages

award and later address the punitive damages award.

1.

The officers argue that the district court abused

its discretion in denying their motion for a new trial

under Rule 59(a) because the compensatory damages

award was not supported by the evidence. See FDIC,

506 F.3d at 294. A district court’s denial of a request

for a new trial “rests with the sound discretion of the

trial judge and will not be reversed absent an abuse of

discretion.” Stamathis v. Flying J, Inc., 389 F.3d 429,

436 (4th Cir. 2004). “[J]ury determinations of factual

matters such as . . . the amount of compensatory

damages will be reviewed by determining whether the

jury’s verdict is against the weight of the evidence or

based on evidence which is false.” Atlas Food Sys. &

Servs., Inc. v. Crane Nat. Vendors, Inc., 99 F.3d 587,

594 (4th Cir. 1996). When considering a motion for a

new trial under Rule 59, “a trial judge may weigh the

evidence and consider the credibility of the witnesses.”

Poynter ex rel. Poynter v. Ratcliff, 874 F.2d 219, 223

(4th Cir. 1989).

The officers contend that the evidence of Hicks’s

emotional distress did not justify the compensatory

damage award because Hicks’s distress did not

interfere with his job performance, require medical

attention, cause physical injuries, or result in

economic loss. According to the officers, Hicks’s

emotional distress was caused by having a gun pointed

App-31

at him by the officers, not from the officers’

unconstitutional conduct in unlawfully seizing him.

We disagree with the officers’ arguments.

Compensatory damages are available to plaintiffs

asserting a Bivens claim who suffer humiliation,

embarrassment, and other emotional harm without

accompanying physical or economic injuries. Bivens,

403 U.S. at 389-90 (explaining that plaintiff sought

$15,000 from each defendant officer based on

humiliation, embarrassment, and mental suffering);

see Passman, 442 U.S. at 234, 245. Damages generally

“may not be presumed from every constitutional

violation, but must be proven by competent, sufficient

evidence.” Price v. City of Charlotte, 93 F.3d 1241,

1250 (4th Cir. 1996). Indeed, as the jury was

instructed in the present case, nominal damages

should be awarded if the plaintiff was deprived of a

constitutional right, without any resulting injury such

as physical, emotional, or financial damage. See id. at

1246.

A plaintiff’s testimony alone may be sufficient to

support an award of compensatory damages based on

emotional distress resulting from a constitutional

violation. Id. at 1254. But that testimony must show

“demonstrable” distress that is “sufficiently

articulated” and not “conclusory.” Id. at 1254-56

(reversing award based on emotional injuries of

several plaintiffs who did not show need for medicine,

physical symptoms, psychological disturbance,

counseling, description of distress, “how their conduct

changed or if others observed their changed conduct,”

or any corroboration of distress). In other words, a

App-32

plaintiff must present evidence that a “genuine injury”

occurred. Id. at 1254 (citation omitted).

Courts may consider the following factors in

evaluating the sufficiency of evidence of emotional

distress: the degree of distress; the context of events

surrounding the distress; corroborative evidence; a

nexus between the violation and the distress; any

mitigating

circumstances;

medical

attention;

psychiatric or psychological treatment; physical

injuries; and any loss of income. Knussman v.

Maryland, 272 F.3d 625, 640 (4th Cir. 2001). Applying

these factors, the district court held that the

compensatory damages award was supported by

sufficient evidence and was not “against the weight of

the evidence.” We find no abuse of discretion in this

determination.

Hicks’s testimony regarding his emotional

distress, although subjective in nature, was

descriptive in its severity. He recounted that he

sought counseling and experienced ongoing sleep

deprivation, and he described the negative impact of

the unlawful seizures on his relationships with his

family and his coworkers. He also presented a

corroborating witness who described Hicks’s physical

and mental decline after the encounters with the

officers. See Jones v. SouthPeak Interactive Corp. of

Del., 777 F.3d 658, 673 (4th Cir. 2015) (evidence about

emotional difficulty was specific and corroborated).

But see Hetzel v. County of Prince William, 89 F.3d

169, 171 (4th Cir. 1996) (holding evidence of emotional

injury too “thin” when plaintiff did not seek

professional help and complained of headaches and

“problems with her family life” with no corroborating

App-33

evidence). And notably, the district court found both

Hicks’s and Wilson’s testimony credible. On this

record, we conclude that Hicks presented evidence of

a “genuine injury” that was “sufficiently articulated”

to support the award of compensatory damages. See

Price, 93 F.3d at 1254-55.

Our conclusion is not altered by the officers’

argument that Hicks’s distress resulted from having a

gun pointed at him, rather than from the

unconstitutional seizures. The jury heard Hicks

describe that he feared for his life when he saw Officer

Ferreyra’s gun pointed at him, and when Ferreyra

continued to do so after Hicks provided his Secret

Service credentials. The jury also heard Hicks explain

that he continued to feel “terrified” even after Officer

Ferreyra walked away from Hicks’s car. The jury also

was permitted to consider Hicks’s explanation that he

continued to feel “helpless” and belittled as a Black

man confronted by armed White officers who were

taunting him during the unlawfully prolonged

detention. The jury further could infer on this record

that the mental anguish Hicks suffered as a result of

the first unlawful detention was compounded by

Officer Phillips’s second, unjustified stop, which the

jury could have determined was initiated to continue

the officers’ harassment of Hicks. Based on this

evidence, we conclude that the district court did not

abuse its discretion in denying the officers’ Rule 59(a)

motion for a new trial on the issue of compensatory

damages. See Poynter ex rel. Poynter, 874 F.2d at 223.

2.

We next consider the officers’ argument that the

district court erred in denying their motion for a new

App-34

trial on damages or for remittitur because the punitive

damages award was constitutionally excessive. 5 They

assert that their conduct was not “reprehensible”

because they did not cause Hicks physical harm, did

not disregard Hicks’s health or safety, did not target a

financially vulnerable victim, and did not participate

in repeated transgressions. See United States ex rel.

Drakeford v. Tuomey, 792 F.3d 364, 375, 388 (4th Cir.

2015) (quoting State Farm Mut. Auto Ins. Co. v.

Campbell, 538 U.S. 408, 419 (2003), which set forth

five factors relevant to assessing the degree of

reprehensible conduct). Thus, the officers contend that

the evidence did not support the jury’s finding that

Hicks was entitled to $525,000 in punitive damages.

We disagree.

Punitive damages are available to plaintiffs

asserting claims under Bivens. See Carlson, 446 U.S

at 22. Such damages are meant to punish the

defendant’s conduct and to deter future wrongdoing.

Drakeford, 792 F.3d at 387 (citing Cooper Indus., Inc.

v. Leatherman Tool Grp., Inc., 532 U.S. 424, 432

(2001)). In reviewing an award for punitive damages,

courts consider: “(1) the degree of reprehensibility of

the defendant’s conduct; (2) any disparity between the

actual or potential harm suffered by the plaintiff and

the amount of the punitive award; and (3) any

5 “A punitive damages award is subject to review for compliance

with the procedural and substantive constitutional limitations of

the Due Process Clause of the Fifth Amendment, lest a grossly

excessive award of such damages effect an arbitrary deprivation

of property.” EEOC v. Fed. Express Corp., 513 F.3d 360, 376 (4th

Cir. 2008); see also United States ex rel. Drakeford v. Tuomey, 792

F.3d 364, 387 (4th Cir. 2015).

App-35

difference between the award and civil penalties that

are authorized or imposed in comparable cases.” Fed.

Express Corp., 513 F.3d at 376 (citing State Farm, 538

U.S. at 418).

With these principles in mind, we reject the

officers’ argument that the punitive damages award

was constitutionally excessive. As the district court

explained, the officers detained Hicks “unnecessarily

and deliberately,” “knowing that [Hicks] was an onduty [S]ecret [S]ervice agent,” thereby causing Hicks

to miss his assigned security detail. Intensifying the

effect of their unlawful seizure, the officers used

“abusive language, belittling and demeaning

remarks,” and demonstrated “spiteful, harassing

behavior.” And, as the court further observed, Officer

Phillips continued his malicious conduct during the

unlawful second stop, telling Hicks that he was being

“mouthy” and demanding to see Hicks’s license,

despite knowing that Hicks was a Secret Service agent

properly authorized to operate his vehicle. Thus, the

record supports the court’s determination that the

officers acted “with malice” in causing Hicks emotional

injury. See Drakeford, 792 F.3d at 387 (explaining that

whether the conduct involved repeated actions or the

harm resulted from malice are relevant factors in

assessing reprehensibility); see also Saunders v.

Branch Banking & Tr. Co. of Va., 526 F.3d 142, 153

(4th Cir. 2008) (concluding that the presence of one

State Farm factor can justify “a substantial award of

punitive damages”).

In addition, we observe that the award of punitive

damages against each officer was less than three

times the amount of the correlating award of

App-36

compensatory damages. This ratio comports with

decisions from the Supreme Court and this Court

upholding punitive damages awards. See State Farm,

538 U.S. at 425; Saunders, 526 F.3d at 154

(characterizing

a

single-digit

punitive-tocompensatory-damages ratio as “normal”).

Because the district court’s analysis on the issue

of punitive damages was well-reasoned and fully

supported by the record, we hold that the court did not

err in upholding the punitive damages award. And,

based on our determination that the punitive damages

award was not constitutionally excessive, we discern

no basis for concluding that the district court abused

its discretion in refusing to order a new trial or

remittitur on the issue of punitive damages. See

Drakeford, 792 F.3d at 375, 389-90.

IV.

For these reasons, we affirm the district court’s

denial of the officers’ post-trial motions for judgment

as a matter of law under Rule 50(b) and for a new trial

under Rule 59(a).

AFFIRMED

App-37

Appendix B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Southern Division

________________

No. PWG-16-2521

________________

NATHANIEL HICKS,

v.

Plaintiff,

OFFICER GERALD L. FERREYRA, et al.,

Defendants.

________________

Filed: January 28, 2022

Document 175

________________

MEMORANDUM OPINION

This is a civil case involving a claim, referred to

as a Bivens 1 claim, under which the Plaintiff, United

States Secret Service Special Agent (now retired)

Nathaniel Hicks, alleged a violation of his

constitutional rights that took place on July 15, 2015

by Defendants, United States Park Police Officers

Gerald Ferreyra and Brian Phillips. This case was

tried before a jury on July 6-9, 2021, and a jury verdict

was rendered in favor of Agent Hicks with an award

of compensatory and punitive damages. Now pending

1 Referring to Bivens v. Six Unknown Named Agents of Fed.

Bur. Of Narcotics, 403 U.S. 388 (1971).

App-38

before me is Defendants’ motion for judgment as a

matter of law nothwithstanding the jury’s verdict, or

for a new trial. Mot., ECF No. 165. I have reviewed all

the filings 2 and find a hearing unnecessary. See Loc.

R. 105.6 (D. Md. 2021). For the reasons stated below,

Defendants’ motion is DENIED.

BACKGROUND 3

On July 15, 2015, at approximately 6:00 a.m.,

Plaintiff Nathaniel Hicks, then a United States Secret

Service Special Agent, was on-duty and parked on the

shoulder of Maryland Route 295 North (the BaltimoreWashington Parkway). Fourth Cir. Op. 3, ECF No. 992. Agent Hicks was sitting in his Secret Service issued

vehicle, waiting to join a government motorcade for

the Secretary of the Department of Homeland

Security. Id.; Am. Compl. ¶¶ 24-26, ECF No. 49-1.

Sometime after 6:00 a.m., United States Park Police

(“USPP”) Officer Gerald Ferreyra pulled his police

cruiser behind Agent Hicks’s vehicle and approached

the vehicle. Mem. Op. 3, ECF No. 87. As he

approached, Officer Ferreyra noticed a handgun

located on the passenger’s seat of Agent Hicks’s

vehicle. Id. Officer Ferreyra drew his weapon, after

which Agent Hicks quickly identified himself, showed

2 Defendants’ Motion Memorandum, ECF No. 165-1; Plaintiff’s

Response in Opposition, ECF No. 168; Defendants’ Reply, ECF

No. 174; and the attached exhibits and appendices.

I provide here, for context only, a brief overview of the

background of this case. For further background, see my

Memorandum Opinion and Order on Summary Judgement, ECF

No. 87, which can also be found at Hicks v. Ferreyra, 396 F. Supp.

3d 564 (D. Md. 2019), and the Fourth Circuit affirming opinion,

ECF No. 99-2, reported at 965 F.3d 302 (4th Cir. 2020).

3

App-39

his Secret Service credentials, and explained that he

was on duty, waiting to join the motorcade. Id.

Despite having no “reason to doubt the validity of

[Agent Hicks’s] credentials,” Officer Ferreyra called

for assistance, and USPP Officer Brian Phillips and

Sergeant Timothy Wallace (Officer Ferreyra’s

supervisor) subsequently arrived on scene. Id. at 4, 15.

About 40 to 59 minutes later, and well after the

motorcade had passed (and with it, Agent Hick’s

ability to carry out his assigned escort duties), the

Officers returned to Agent Hicks his credentials and

weapon and told him that he was free to go. Fourth

Cir. Op. 4.

This freedom to go was short-lived, however, as

the record indicates that Officer Phillips pulled over

Agent Hicks minutes after he left the scene of his first

detention, and detained Agent Hicks a second time. Id.

at 4-5. Officer Phillips claimed that Agent Hicks was

driving erratically and illegally talking on his cellular

telephone. Mem. Op. 6, ECF No. 87. Although Officer

Phillips “concedes that he recognized [Agent] Hicks

when he approached his car, he nevertheless

demanded [Agent] Hicks’s license and registration

and detained him further before ultimately releasing

him.” Fourth Cir. Op. 5.

On July 8, 2016, Agent Hicks filed this Bivens

action against Officers Ferreyra and Phillips. Compl.,

ECF No. 1. Defendants filed a dismissal motion

seeking a finding of qualified immunity, which I

denied in April 2017. ECF Nos. 37, 44. On July 28,

2017, Agent Hicks filed an amended complaint, adding

a civil conspiracy cause of action under 42 U.S.C.

§ 1985. Am. Compl. In November 2018, Defendants

App-40

filed a summary judgment motion, ECF No. 78, which

was denied with regard to the Bivens claim and

qualified immunity, but granted with regard to the

civil conspiracy charge, ECF No. 87. The ruling was

appealed, and on July 14, 2020, the Fourth Circuit

affirmed in part and dismissed in part, finding that

Defendants had waived their argument that Agent

Hicks lacked a cause of action under Bivens because

the issue had not been raised before this Court, and

dismissing

Defendants’

qualified

immunity

arguments because they raised factual issues. Fourth

Cir. Op. 2, 14, 17.

A jury trial was held from July 6-9, 2021. The jury

found for the Plaintiff and made the following findings

in a Special Verdict Form that included special

interrogatories:

•

Defendant Officer Ferreyra acted under color

of law to violate Plaintiff Agent Hicks’s

constitutional rights under the Fourth

Amendment during the first encounter with

Agent Hicks.

•

Officer Ferreyra’s violation of Agent Hicks’s

constitutional rights under the 4th

Amendment caused Agent Hicks to suffer

compensatory damages for physical and/or

emotional injury, which the jury awarded in

the amount of $80,000 against Officer

Ferreyra.

•

Officer Ferreyra acted with malice or reckless

indifference to Agent Hicks’s federally

protected 4th Amendment rights, and the

App-41

jury awarded Agent Hicks punitive damages

of $225,000 against Officer Ferreyra.

•

Defendant Officer Phillips acted under color

of law to violate Plaintiff Agent Hick’s

constitutional rights under the 4th

Amendment during the first encounter with

Agent Hicks and again when he stopped

Agent Hicks during the second encounter.

•

Officer Phillips’ violation of Agent Hicks’s

constitutional rights caused Agent Hicks to

suffer compensatory damages for physical

and/or emotional injury, which the jury

awarded in the amount of $125,000 against

Officer Phillips.

•

Officer Phillips acted with malice or reckless

indifference to Agent Hicks’s federally

protected rights, and the jury awarded Agent

Hicks punitive damages of $300,000 against

Officer Phillips.

•

The jury also made factual findings by

answering special interrogatories as follows:

1.

That Agent Hicks appeared to be asleep to

Officer Ferreyra when Officer Ferreyra first

approached the front passenger side of the

2014 Chevrolet Impala?

__X___ YES _____ NO

2.

That it appeared to Officer Ferreyra that

Agent Hicks reached for the gun on the front

passenger seat of the 2014 Chevrolet Impala

App-42

in response to Officer Ferreyra knocking on

the front passenger window?

_____ YES __X___ NO

3.

That Officer Ferreyra knew that Agent Hicks

was a Secret Service Agent once he properly

verified his credentials?

__X___ YES _____ NO

4.

That Officer Ferreyra followed a customary

practice within U.S. Park Police when he

requested a supervisor’s presence on the

scene?

_____ YES __X___ NO

5.

That Officer Phillips left the scene of the first

encounter before Agent Hicks?

__X___ YES _____ NO

6.

That the totality of Officers Ferreyra and

Phillips’ actions were reasonably necessary at

the scene of the first encounter?

_____ YES __X___ NO

7.

That after leaving the scene of the first

encounter, Officer Phillips observed a

motorist driving erratically and talking on his

mobile phone as he traveled northbound on I295?

_____ YES __X___ NO

8.

That Officer Phillips realized it was Agent

Hicks driving the vehicle prior to pulling the

vehicle over?

__X___ YES _____ NO

App-43

9.

That Officer Phillips realized it was Agent

Hicks driving the vehicle prior to demanding

Agent Hicks’s license?

__X___ YES _____ NO

Special Verdict Form, ECF No. 150.

Defendants now move for this Court to (1) grant

them qualified immunity; (2) enter judgment as a

matter of law notwithstanding the jury’s verdict on the

basis that Plaintiff’s claim represents an improper

extension of the remedy set forth in Bivens, 403 U.S.

388; (3) order a new trial due to prejudice that resulted

from the admission of indemnification evidence during

Plaintiff’s rebuttal closing argument; and/or (4) order

a new trial nisi remittitur on the grounds that the

compensatory and punitive damages award was

excessive and unsupported by the evidence. Mot., ECF

No. 165.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 50(b) provides

that a party may file a renewed motion for judgment

as a matter of law within twenty-eight days after entry

of judgment, and a Court may:

(1) allow judgment on the verdict, if the jury

returned a verdict;

(2) order a new trial; or

(3) direct the entry of judgment as a matter of law.

Fed. R. Civ. P. 50(b). When considering a motion under

Rule 50, the court views the evidence in the light most

favorable to the non-movant. Gregg v. Ham, 678 F.3d

333, 341 (4th Cir. 2012). The court gives the non-

App-44

movant the benefit of all reasonable inferences from

the evidence, asks whether there is “substantial

evidence in the record to support the jury’s findings,”

but does not make credibility determinations or weigh

the evidence. Anderson v. Russell, 247 F.3d 125, 129

(4th Cir. 2001); Reeves v. Sanderson Plumbing, 530

U.S. 133, 150-51 (2000) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986)).

ANALYSIS

I. Qualified Immunity

Qualified immunity “protects law enforcement

agents from federal claims when they act in objectively

reasonable reliance on existing law.” Queen v. Prince

George’s Cnty., 188 F. Supp. 3d 535, 541 (D. Md. 2016)

(quoting Rockwell v. Mayor & City Council of Balt.,

No. RDB-13-3049, 2014 WL 949859, at *8 n.10 (D. Md.

Mar. 11, 2014)). It “balances two important interests—

the need to hold public officials accountable when they

exercise power irresponsibly and the need to shield

officials from harassment, distraction, and liability

when they perform their duties reasonably.” Pearson

v. Callahan, 555 U.S. 223, 231 (2009).

“The doctrine shields government officials from

liability for civil damages, provided that their conduct

does not violate clearly established statutory or

constitutional rights within the knowledge of a

reasonable person.” Wingate v. Fulford, 987 F.3d 299,

311 (4th Cir. 2021) (citing Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)). The defendant carries the

burden of proving qualified immunity. Id. (citing

Meyers v. Balt. Cnty., 713 F.3d 723, 731 (4th Cir.

2013)). To meet that burden, the defendant must show

App-45

either that (1) no constitutional right was violated, or

(2) “that the right was not clearly established at the

time” the violative conduct occurred. Id.

A right is clearly established when the law has

“been authoritatively decided by the Supreme Court,

the appropriate United States Court of Appeals, or the

highest court of the state.” Wilson v. Layne, 141 F.3d

111, 114 (4th Cir. 1998) (citation omitted). “A right

need not be recognized by a court in a specific factual

context before such right may be considered ‘clearly

established’ for purposes of qualified immunity.”

Wilson v. Prince George’s Cnty., Maryland, 893 F.3d

213, 221 (4th Cir. 2018). The Fourth Circuit has

provided the following guidance when assessing

whether a right was clearly established:

[A court must] first look to cases from the

Supreme Court, this Court, or the highest

court of the state in which the action arose. In

the absence of directly on-point, binding

authority, courts may also consider whether

the right was clearly established based on

general constitutional principles or a

consensus of persuasive authority. The

Supreme Court has ruled against defining a

right at too high a level of generality and held

that doing so fails to provide fair warning to

officers that their conduct is unlawful outside

an obvious case.

Ray v. Roane, 948 F.3d 222, 229 (4th Cir. 2020)

(citations omitted). The Supreme Court has stressed

that the “specificity” of the legal principle is

“especially important in the Fourth Amendment

context.” District of Columbia v. Wesby, 138 S. Ct. 577,

App-46

590 (2018) (quoting Mullenix v. Luna, 577 U.S. 7, 12

(2015)). “Of course, there can be the rare ‘obvious case,’

where the unlawfulness of the officer’s conduct is

sufficiently clear even though existing precedent does

not address similar circumstances.” Id.

The Court may “exercise [its] sound discretion in

deciding which of the two prongs of the qualified

immunity analysis should be addressed first in light of

the circumstances in the particular case at hand.”

Pearson, 555 U.S. at 236. In the context before me, a

jury has found that the officers violated Agent Hicks’s

Fourth Amendment rights. At Defendants’ request, 4

the jury was given special interrogatories for the

purpose of deciding issues of fact necessary for me to

determine qualified immunity. See Yates v. Terry, 817

F.3d 877, 882 n. 2 (4th Cir. 2016) (quoting Willingham

v. Crooke, 412 F.3d 553, 560 (4th Cir. 2005) (“Where ‘a

dispute of material fact precludes a conclusive ruling

on qualified immunity at the summary judgment

stage, the district court should submit factual

questions to the jury and reserve for itself the legal

question of whether the defendant is entitled to

qualified immunity on the facts found by the jury.’”).

The facts, as found by the jury, establish that

during the first of the two encounters, Officer Ferreyra

approached a vehicle parked at the side of the road

and knocked on the front passenger window because

the driver (Agent Hicks) appeared to be asleep. Special

Verdict, ECF No. 150. In response, Agent Hicks

I note that Plaintiff objected to the use of special

interrogatories, but his objection was overruled. See Pretrial

Order 18-19, ECF Nos. 117, 131.

4

App-47

provided his Secret Service credentials, but he did not

reach for his gun on the front passenger seat. Id.

Thereafter,

Officers

Ferreyra

and

Phillips

unreasonably detained Agent Hicks knowing that he

was a Secret Service Agent. Id. Officer Ferreyra was

not following a customary practice within the USPP

when he requested a supervisor’s presence on the

scene. Id. With regard to the second encounter, the

jury found that Officer Phillips left the scene of the

first encounter before Agent Hicks, and then pulled

Agent Hicks’s vehicle over and demanded his license.

Id. Officer Phillips knew that it was Agent Hicks

driving the vehicle before pulling the vehicle over, and

he had not observed the vehicle being driven

erratically nor did he observe the driver talking on his

mobile phone. Id. The jury also found that both officers

acted with malice or reckless indifference to Agent

Hicks’s Fourth Amendment rights. Id.

Therefore, constitutional violations having been

established, I shall focus my analysis on whether the

rights violated by Defendants were clearly established

in July 2015, beginning with the violation that

occurred during the first encounter. “The first step in

determining whether a constitutional right is clearly

established requires ‘defin[ing] the precise right into

which we are inquiring.’” Halcomb v. Ravenell, 992

F.3d 316, 319 (4th Cir. 2021) (quoting Armstrong v.

Village of Pinehurst, 810 F.3d 892, 907 (4th Cir.

2016)). The parties agree that it was reasonable under

the circumstances of this case—a parked vehicle with

a driver who appeared to be asleep and a firearm

visible on the passenger seat—for Officer Ferreyra to

knock on the vehicle window and briefly detain Agent

Hicks while checking his identification. See Mot.

App-48

Mem. 4; Resp. 3, 5 n.3. However, Agent Hicks had the

right to not be further detained without probable

cause or even a reasonable, articulable suspicion once

his identification had been established as a law

enforcement officer authorized to carry a firearm. See,

e.g., Illinois v. Caballes, 543 U.S. 405, 407 (2005)

(holding that a lawful traffic stop can become unlawful

if it is prolonged beyond its purpose); Rodriguez v.

United States, 575 U.S. 348, 354 (2015) (noting that a

detention may last no longer than necessary to

effectuate its mission).

“After defining the right, we ask whether the law

‘is sufficiently clear that every reasonable official

would have understood that what he is doing violates

that right.’” Halcomb, 992 F.3d at 320 (quoting

Armstrong, 810 F.3d at 907). In my earlier decisions

in this case, I held that the constitutional right not to

be detained without probable cause was clearly

established. See Mem. Op. 6-7, ECF No. 44; Mem.

Op. 13-14, 17, ECF No. 87. Defendants argue that I

must also consider the first two minutes of the

encounter in the totality of the circumstances because

what happened during that time explains “why” the

first encounter lasted as long as it did. Mot. Mem. 4.

However, the Defendants’ subjective rationalization of

their conduct is not relevant to whether their conduct

was objectively reasonable. Regardless whether the

stop was initially premised on a welfare check rather

than suspicion of criminal activity, Defendants

continued to detain Agent Hicks long after

determining that he was an on-duty law enforcement

officer who was legally authorized to carry a firearm.

Under the particular circumstances facing Officers

Ferreyra and Phillips, as found by the jury, and as

App-49

described by the officers themselves, there was no

probable cause to further detain Agent Hicks, and the

Defendants had no reasonable suspicion of criminal

activity. That it was an unusual situation does not

change clearly established law requiring probable

cause or reasonable suspicion for Defendants to

further detain Agent Hicks. 5 Defendants do not argue

that they made a mistake of fact or law but argue that

it was reasonable to call a supervisor. However, no

reasonable officer would believe it was lawful to detain

an individual without legal justification. And both

Officers testified that they had received training

regarding their obligations under the Fourth

Amendment and that they understood that they could

not detain a person in violation of the Fourth

Amendment. Tr. 73:5-13; 151:8-16, July 7, 2021, ECF

No. 159. Therefore, qualified immunity is not

available to Defendants under the circumstances of

the first encounter.

With regard to the second encounter, Agent Hicks

had a Fourth Amendment right not to be stopped

absent a “reasonable, articulable suspicion” that he

had been, currently was, or was about to be “engaged

in criminal activity.” United States v. Place, 462 U.S.

696, 702 (1983). This right also was clearly established

in July 2015. See, e.g., id.; United States v. Singh, 363

F.3d 347, 355 (4th Cir. 2004) (“A reasonable suspicion

exists when law enforcement officers possess a

5 The cases cited by Defendants are not to the contrary. See

Mot. App’x A, ECF No. 165-6; Reply 5-6 (citing two recent

excessive force cases). None of the cited cases support the

contention that an individual may be detained absent probable

cause or reasonable suspicion.

App-50

particularized and objective basis for suspecting the

person stopped of criminal activity.”). It is simply not

credible to suggest that a reasonable officer in July

2015 would not know that a vehicle stop required at

minimum a reasonable suspicion of some criminal

activity.

Based on the particular circumstances present in

this case, Officer Phillips had no reasonable suspicion

that Agent Hicks was engaged in criminal activity

before pulling him over and demanding his license.

The jury found that Officer Phillips knew it was Agent

Hicks before stopping him. Special Verdict 5-6, ECF

No. 150. 6 Officer Phillips has not carried his burden of

establishing entitlement to qualified immunity under

the circumstances of the second encounter.

Accordingly, Defendants’ request for a grant of

qualified immunity is DENIED.

II. Proper Extension of Bivens

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics creates an implied cause of action

under the Fourth Amendment for damages. 403 U.S.

388, 397 (1971). The Supreme Court also has

recognized implied causes of actions in two other

constitutional violation cases: a Fifth Amendment

Due Process Clause claim for gender discrimination,

Defendants erroneously assert that the jury agreed that

Officer Phillips observed a motorist driving erratically while

talking on his cell phone. Mot. Mem. 7 (citing Special Verdict,

Special Interrogatory No. 7). It did not. The jury found by a

preponderance of the evidence that Officer Phillips did not

observe a motorist driving erratically while talking on his mobile

phone. Special Verdict 5, ECF No. 150.

6

App-51

Davis v. Passman, 442 U.S. 228, 248-49 (1979), and an

Eighth Amendment Cruel and Unusual Punishment

Clause claim for “failure to provide adequate medical

treatment.” Carlson v. Green, 446 U.S. 14, 19 (1980).

However, while recognizing that Bivens is settled law

in the area of law enforcement, the Supreme Court has

adopted a different “approach to recognizing implied

causes of action,” and expansions of a Bivens remedy

to a “new context or new category of defendants” is “a

disfavored judicial activity.” Ziglar v. Abbasi, 137 S.

Ct. 1843, 1857 (2017) (citations omitted). After

declining to extend Bivens to several other types of

cases, the Supreme Court consequently adopted a twopart test in Ziglar v. Abbasi for courts to use in

determining whether a Bivens remedy should be made

available. Id. at 1857-60.

First, courts must determine if the case “presents

a ‘new Bivens context.’” Tun-Cos v. Perrotte, 922 F.3d

514, 522 (4th Cir. 2019). “If the case is different in a

meaningful way from previous Bivens cases decided by

this Court, then the context is new.” Abbasi, 137 S. Ct.

at 1859. A non-comprehensive list of factors to

consider in analyzing whether the case differences are

meaningful enough to create a new Bivens context

includes:

[T]he rank of the officers involved; the

constitutional right at issue; the generality or

specificity of the official action; the extent of

judicial guidance as to how an officer should

respond to the problem or emergency to be

confronted; the statutory or other legal

mandate under which the officer was

operating; the risk of disruptive intrusion by

App-52

the Judiciary into the functioning of other

branches; or the presence of potential special

factors that previous Bivens cases did not

consider.

Id. at 1860; see also Hernandez v. Mesa, 140 S. Ct. 735

(2020) (recognizing that the list is not exhaustive and

identifying “separation-of-powers principles” as being

central to the analysis). Although differences may be

slight, “[g]iven this Court’s expressed caution about

extending the Bivens remedy, . . . the new-context

inquiry is easily satisfied.” Id. at 1865. “If the context

is not new—i.e., if the case is not “different in [any]

meaningful way” from the three cases in which the

Court has recognized a Bivens remedy—then a Bivens

remedy continues to be available.” Tun-Cos, 922 F.3d

at 522-23.

Second, “if the context is new, then courts must,

before extending Bivens liability, evaluate whether

there are “special factors counselling hesitation in the

absence of affirmative action by Congress.” Id. at 523

(quoting Abbasi, 137 S. Ct. at 1857). The inquiry in

determining whether there are special factors present

is “whether the Judiciary is well suited, absent

congressional action or instruction, to consider and

weigh the costs and benefits of allowing a damages

action to proceed.” Abbasi, 137 S. Ct. at 1857-58.

Alternative remedies should also be taken into

account. See id. at 1858 (“[I]f there is an alternative

remedial structure present in a certain case, that

alone may limit the power of the Judiciary to infer a

new Bivens cause of action.”). A Bivens remedy is not

available if any special factors which counsel

hesitation are present. Tun-Cos, 922 F.3d at 523.

App-53

In creating this test, the Abbasi Court

emphasized “that this opinion is not intended to cast

doubt on the continued force, or even the necessity, of

Bivens in the search-and-seizure context in which it

arose” and that “[t]he settled law of Bivens in this

common and recurrent sphere of law enforcement, and

the undoubted reliance upon it as a fixed principle in

the law, are powerful reasons to retain it in that

sphere.” Abbasi, 137 S. Ct. at 1856-57. 7

Plaintiff argues that he presents a “classic Bivens

scenario that is no different from hosts of other Bivens

claims that courts have consistently recognized.”

Resp. 9. And he notes the Fourth Circuit’s comment

when reviewing this case on interlocutory appeal—

along every dimension the Supreme Court has

identified as relevant to the inquiry, this case

appears to represent not an extension of

Bivens so much as a replay: Just as in Bivens,

Hicks seeks to hold accountable line-level

agents of a federal criminal law enforcement

agency, for violations of the Fourth

Amendment, committed in the course of a

routine law-enforcement action.

Id. (quoting Hicks, 965 F.3d at 311 (emphasis added)).

Defendants dismiss the Fourth Circuit’s observations

as dictum and irrelevant in light of its more recent

opinion in Annappareddy v. Pascale, 996 F.3d 120 (4th

Cir. 2021). Reply 9. Defendants contend that the facts

of this case are meaningfully different from Bivens

7 But see Hernandez, 140 S. Ct. 750-52 (Thomas, J., concurring)

(suggesting that it was time to consider discarding the Bivens

doctrine).

App-54

such that a new context is created, specifically: unlike

the plaintiff in Bivens, Agent Hicks was never

arrested; he was not asked to step out of his vehicle;

neither he nor his vehicle or home was searched; he

was allowed to retain possession of his car keys and

phones; he was not physically harmed; and he was

never handcuffed. Mot. Mem. 12. Additionally, they

note that the seizure in this case was by law

enforcement of other law enforcement, thereby

creating a new context. Id. at 13.

Based on comparison of this case to Bivens using

Abbassi’s suggested factors, I find that the facts of this

case are not meaningfully different from Bivens and

do not present either a new context or a new category

of defendants. First, the defendants in Bivens were

line-level federal officers, as are the Defendants in this

case. Annappareddy, 996 F.3d at 135 (characterizing

a claim against line-level investigative officers, and

not high-ranking officials, as being like Bivens).

Second, Bivens involved the Fourth Amendment

right to be free of unreasonable searches and seizures.

403 U.S. at 389-90. I approach the review of a new

context with caution, understanding that a “claim may

arise in a new context even if it is based on the same

constitutional provision as a claim in a case in which

a damages remedy was previously recognized.”

Hernandez, 140 S. Ct. at 743. The Fourth Circuit

recognized this distinction in Annappareddy, in which

it distinguished Bivens as a seizure conducted without

a warrant, which implicates a “distinct Fourth

Amendment guarantee.” 996 F.3d at 135. This case

also involves a Fourth Amendment warrantless

seizure, and the “right at issue” is not “meaningfully

App-55

different from the one at issue in Bivens itself.” Id.

(quoting Abbasi, 137 S. Ct. at 1860). While the traffic

stop encounters at issue here are factually different

from the “apprehension, detention, and physical

searches at issue in Bivens,” id. (quoting Farah v.

Weyker, 926 F.3d 492, 499 (8th Cir. 2019)), it does not

implicate a different legal standard—the requirement

for the officers to have probable cause or reasonable

suspicion for a seizure to be reasonable. See, e.g.,

Whren v. United States, 517 U.S. 806, 809 (1996)

(“Temporary detention of individuals during the stop

of an automobile by the police . . . constitutes a

‘seizure.’”); Terry v. Ohio, 392 U.S. 1, 20 (1968) (“[t]he

conduct involved in this case must be tested by the

Fourth Amendment’s general proscription against

unreasonable searches and seizures.”). 8

Further, although the authority under which the

officers in Bivens acted was for narcotics violations,

Bivens, 403 U.S. at 388, Fourth Circuit precedent

suggests that legal mandates create a new Bivens

context only if the authority is not generally criminal

law. See Tun-Cos, 922 F.3d at 524 (holding that

because ICE agents enforce immigration law rather

8 As the Fourth Circuit noted in Hicks, the Fourth Circuit and

other courts also have recognized Fourth Amendment Bivens

claims that occurred in the context of a traffic stop. 965 F.3d at

311-12; Schultz v. Braga, 455 F.3d 470, 474-75, 480 (4th Cir.

2006) (analyzing other aspects of a Bivens claim where plaintiffs

mistaken for robbery suspects were forcibly stopped in their

vehicle); McLeod v. Mickle, 765 F. App’x 582, 583 (2d Cir. 2019)

(analyzing other aspects of a Bivens claim where an officer

“unreasonably prolonged an otherwise lawful traffic stop . . . to

question McLeod about illegal drugs, call for a K9 unit, and

perform a ‘dog sniff’ of his car”).

App-56

than criminal law, the legal mandate the officers

operated under was a new context under Abbasi);

Annappareddy, 996 F.3d at 128, 135 (determining that

in a case where plaintiffs were charged with health

care fraud and aggravated identity theft, defendants

in that case and in Bivens both “sought to enforce only

ordinary criminal laws”). Here, Defendants also

operated within the criminal law context. See, e.g.,

ECF No. 87 at 15 (citing Md. Code Ann., Crim. Law

§ 4-203(a)(1), which prohibits vehicular handgun

carrying and transportation on a highway, as

authority giving Officer Ferreyra reasonable suspicion

to investigate). This case therefore does not create a

new Bivens context under this factor.

Bivens actions are “not ‘a proper vehicle for

altering an entity’s policy.’” Abbasi 137 S. Ct. at 1860

(quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74

(2001)). The Supreme Court cautioned that “[e]ven if

the action is confined to the conduct of a particular

Executive Officer in a discrete instance, these claims

would call into question the formulation and

implementation of a general policy” which would

“require inquiry and discovery” into the “discussions

and deliberations that led to the policies and

governmental acts being challenged.” Id. The concern

is that “the burden and demand of litigation might

well prevent” future officials “from devoting the time

and effort required for the proper discharge of their

duties.” Id. The Fourth Circuit has held that an

entity’s policy was improperly contested in a Bivens

claim in Tun-Cos, where the plaintiffs’ complaint

“specifically targeted the Trump Administration’s

immigration enforcement policy with the purpose of

altering it,” and contended that the “policy gave rise to

App-57

the conduct that they alleged . . . was illegal.” 922 F.3d

at 527. Here, this factor does not create a new context

because Agent Hicks challenged only the officers’

specific actions, not the USPP’s policy. Although

Defendants argue that they acted in accordance with

understood USPP policy by summoning a supervisor,

the jury categorically rejected this claim, and found

that Defendants were not following a customary

practice within the USPP when requesting the

supervisor’s presence. Special Verdict 5. Therefore,

this case presents no risk of a disruptive intrusion by

the Judiciary into the functioning of other branches.

The Abassi Court also suggests that courts

evaluate “the extent of judicial guidance as to how an

officer should respond to the problem or emergency to

be confronted.” 137 S. Ct. at 1860. As already

discussed above, the reasonableness standard for

detaining an individual beyond the scope or purpose of

a traffic stop, and the requirement for a reasonable

suspicion before making a traffic stop, are clearly

established in the law. There is certainly sufficient

judicial guidance for the police officers to know that

their actions in this case were improper. Given the

extent of judicial authority on what constitutes a

Fourth Amendment violation for traffic stops, this

factor does not invoke a new Bivens context.

Defendants suggest that Agent Hicks’s status as

an on-duty federal agent risks a disruptive intrusion

by the Judiciary into the functioning of the executive

branch. Mot. Mem. 13 n.5, 14. This argument is based

on both plaintiff and defendants being federal officials,

which Defendants argue requires me to “delve into the

policies and procedures of both the U.S. Secret Service

App-58

and the U.S. Park Police.” Reply 12. The Supreme

Court has cautioned that “‘courts traditionally have

been reluctant to intrude upon the authority of the

Executive in military and national security affairs’

unless ‘Congress specifically has provided otherwise.’”

Abbasi, 137 S. Ct. at 1861 (quoting Dep’t of Navy v.

Egan, 484 U.S. 518, 530 (1988)). In a recent case, the

Fourth Circuit recognized a risk of Judiciary intrusion

and subsequently declined to extend a Bivens claim to

retaliatory detention in a prison, in part because it

“would work a significant intrusion into an area of

prison management that demands quick response and

flexibility, and it could expose prison officials to an

influx of manufactured claims.” Earle v. Shreves, 990

F.3d 774, 780-81 (4th Cir. 2021). The Earle court held

that “prison officials must have discretion ‘to

determine detention policies, to assess the endless

variety of circumstances in which those policies may

be implicated, and to decide when administrative

detention is served and for how long.’” Id. at 780

(quoting Bistrian v. Levi, 912 F.3d 79, 94 (3d Cir.

2018)). Thus, the issue was “best left to correctional

experts.” Id. at 781.

Here, however, there are no implicated military or

national security issues that risk disruptive intrusion

by the Judiciary. See Abbasi, 137 S. Ct. at 1861; see

also Hernandez, 140 S. Ct. 735 (holding that a Bivens

claim involving a cross-border shooting implicates a

risk of disruptive intrusion). Unlike Earle, the facts of

this case with a law enforcement officer plaintiff do not

present similar concerns of intruding into an area with

the potential for a high-volume of this type of specific

complaint and which would require institutional

expertise and discretion to evaluate. Moreover, the

App-59

jury found that the officers were not operating under

any official policy, Special Verdict 5, and this case does

not require me to delve into either department’s

policies and procedures or analyze sensitive areas of

specialized law. Rather, it is a straightforward case of

routine search and seizure law. Agent Hicks’s

constitutional protections did not differ from any other

citizen’s rights based on his employment as a law

enforcement officer. There is no showing of a

requirement for caution here. Indeed, “[t]he purpose of

Bivens is to deter individual federal officers from

committing constitutional violations.” Correctional

Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001).

Finally, even if the facts of this case presented a

new Bivens context, no special factors counsel

hesitation in permitting the Bivens claim. The “special

factors” analysis focuses on maintaining the

separation of powers. Abbassi, 137 S. Ct. at 1857

(“[S]eparation-of-powers principles are or should be

central to the analysis.”). “[T]he inquiry must

concentrate on whether the Judiciary is well suited,

absent congressional action or instruction, to consider

and weigh the costs and benefits of allowing a

damages action to proceed.” Id. at 1857-58. For

example, in Abbassi, the plaintiffs were suing high

level executive officials and challenging the

Government’s response to the September 11 attacks,

which implicated sensitive issues of national security.

Id. at 1860-61. These types of concerns are simply not

present in this case.

Here, Defendants again argue that because the

parties involved were all active law enforcement

officials working within the executive branch, it

App-60

implicates separation-of-powers concerns. Mot. Mem.

14; Reply 12. And Defendants also argue that

alternative remedies were available to Agent Hicks.

Mot. Mem. 14-15; Reply 13. Defendants do not

establish why Agent Hicks’s law enforcement

profession constitutes a special factor that counsels

hesitation. The Fourth Circuit has recognized that

interference with the “executive branch’s investigative

and prosecutorial functions” is a special factor in a

Bivens claim. Annappareddy, 996 F.3d at 137.

However, the intrusive elements which counseled

hesitation by the Annappareddy Court appeared to be

the fact that the case involved numerous investigator

and prosecutor defendants that would require the

court take “a wide-ranging dive into all actions taken

by each actor as well as all evidence available to

investigators, prosecutors, judges, and juries” to

evaluate the Bivens claim. Id. at 137-38 (quoting

Farah, 926 F.3d at 500). No such extensive and

intrusive inquiry is required here. Defendants also do

not show how the Judiciary’s evaluation of this Bivens

case would burden the executive branch more than in

a comparable case with a civilian plaintiff.

Defendants’ argument regarding alternative

remedies is also not persuasive. In accordance with

Abbasi, 137 S. Ct. at 1858, the Fourth Circuit has

recognized that the existence of an alternative

remedial structure is a special factor that counsels

hesitation. Tun-Cos, 922 F.3d at 526. The Fourth

Circuit has suggested that even if the remedy does not

directly address the constitutional violation, the

question is “whether an elaborate remedial system . . .

should be augmented by the creation of a new judicial

remedy.” See id. at 526-27 (quoting Bush v. Lucas, 462

App-61

U.S. 367, 388 (1983)) (discussing how the INA is a

relevant alternative remedy even despite how it does

not “redress constitutional violations that occur apart

from removal proceedings”). If the remedy is

unavailable to the plaintiff, “[t]he fact that Congress

has expressly provided a damages remedy for some

victims of this particular type of injury, but not for

others, suggests that it considered the issue and made

a deliberate choice.” See Annappareddy, 996 F.3d at

137 (quoting Farah, 926 F.3d at 502).

Defendants argue that Agent Hicks had an

alternative remedy available through the internal

Secret Service investigation of the incident. Mot.

Mem. 14-15. But, as Agent Hicks points out, an

internal investigation that confirmed he “did nothing

wrong during the encounter with Defendants is not an

alternative remedial action that provides recourse

against Defendants for their unlawful conduct.”

Resp. 14. Defendants cite no authority to suggest that

any alternative remedy existed.

In sum, I do not find that this case differs in a

meaningful way from previous Bivens cases, and I

shall DENY Defendants’ request for judgment as a

matter of law on the basis that Agent Hicks’s claim

constitutes an improper extension of the remedy set

forth in Bivens.

III. Indemnification Evidence in Rebuttal Closing

Defendants also move for a new trial, pursuant to

Federal Rule of Civil Procedure 59, based on their

assertion that “impermissible indemnification

evidence [was] introduced during Plaintiff’s rebuttal

closing argument.” Mot. ¶ 3. A party may challenge a

App-62

jury verdict under Rule 59, but it is an “extraordinary

remedy which should be used sparingly.” Pacific Ins.

Co. v. American Nat. Fire Ins. Co., 148 F.3d 396, 403

(4th Cir. 1998). Fed. R. Civ. P. 59(a)(1)(A) provides

that “[t]he court may, on motion, grant a new trial on

all or some of the issues—and to any party— . . . for

any reason for which a new trial has heretofore been

granted in an action at law in federal court.” Whether

to grant a new trial “rests within the sound discretion

of the trial court but such discretion must not be

arbitrarily exercised.” City of Richmond v. Atl. Co.,

273 F.2d 902, 916 (4th Cir. 1960); see Atkinson

Warehousing & Distrb., Inc. v. Ecolab, Inc., 115 F.

Supp. 2d 544, 546 (D. Md. 2000), aff’d, 15 F. App’x 160

(4th Cir. Aug. 9, 2001).

The Court must “‘grant a new trial[ ] if . . . (1) the

verdict is against the clear weight of the evidence, or

(2) is based upon evidence which is false, or (3) will

result in a miscarriage of justice, even though there

may be substantial evidence which would prevent the

direction of a verdict.’” Knussman v. Maryland, 272

F.3d 625, 639 (4th Cir. 2001) (quoting Atlas Food Sys.

& Serv., Inc. v. Crane Nat’l Vendors, Inc., 99 F.3d 587,

594 (4th Cir. 1996)). Unlike a motion under Rule 50,

when considering a motion for a new trial under

Rule 59, “a trial judge may weigh the evidence and

consider the credibility of the witnesses.” Poynter by

Poynter v. Ratcliff, 874 F.2d 219, 223 (4th Cir. 1989);

see also McCollum v. McDaniel, 136 F. Supp. 2d 472,

475 (D. Md. 2001). An error is insufficient cause for a

new trial unless the error caused prejudice. See Fed.

R. Civ. P. 61 (“Unless justice requires otherwise, no

error in admitting or excluding evidence—or any other

error by the court or a party—is ground for granting a

App-63

new trial . . . . At every stage of the proceeding, the

court must disregard all errors and defects that do not

affect any party’s substantial rights.”); DePaoli v.

Vacation Sales Assocs., L.L.C., No. Civ. A. 2:04CV635,

2006 WL 1117799, at *10 (E.D. Va. 2006) (“[I]t is only

errors that cause substantial harm to the moving

party that justify a new trial, and errors that are not

prejudicial do not necessitate a new trial.”), aff’d with

modification of monetary award, 489 F.3d 615 (4th

Cir. 2007).

I shall begin this analysis with a review of the

relevant events that occurred during the trial’s closing

arguments, beginning with Defendants’ closing on

July 8, 2021, after the jury had been instructed, and

Plaintiff’s counsel had finished her closing argument. 9

Defense counsel began with a description of how

Officer Ferreyra was on his way home at the end of his

shift and, seeing a car on the side of the road, he

stopped. Tr. 97:8-98:2, July 8, 2021, ECF No. 160.

He approaches the car and what does he

ultimately get? He gets this. He gets a federal

lawsuit where Agent Hicks ultimately is

seeking to put a vacuum cleaner up to his bank

account.

(Pause)

[Defense counsel]: He gets a federal lawsuit

seeking to have a vacuum cleaner put on his

bank account to award damages that they

don’t even have the guts to put a number on.

That’s what he gets for doing his job.

9 Portions of the transcript are italicized for emphasis.

App-64

Id. at 98:3-11. Defense counsel then described Officer

Phillips pulling over a car that was swerving:

What does he get for it? The same thing as

Officer Ferreyra, a federal lawsuit seeking

unspecified damages.

I mean, why can’t a person come up and

have the guts to say, this is how much money

I want? I suggest to you the reason is because

their damage calculations, and we’re going to

get into that a lot in a few minutes, are so

messed up that they can’t even put a number

on it. These is -- this was not a lawsuit against

the United States. It’s not a lawsuit against

the United States Park Police. This is a

lawsuit, personally, against these two

officers.

Id. at 98:23-99:9.

Defense counsel continued to describe

Defendants’ version of the events of July 2015.

And all he did was say, I want a supervisor.

For that they want damages. To have the

nerve to say, I want a supervisor. Are you

[kidding] me? Come on, give him a half

million bucks for asking for a supervisor.

Heavens to Betsy.

....

But think about this: They talk about

missing the motorcade. What they’re doing is

they’re saying, they want you to award

unspecified damages against these men

personally because it took too long for

the

App-65

Sergeant Wallace to get to the scene. That’s

really what it is.

Id. at 111:5-9, 111:24-112:2.

Now, [Plaintiff’s counsel] talks a lot about -you know, again, the plaintiff doesn’t have

temerity to ask -- to put a number on

anything. And I sat there, I just sat there

waiting through the whole case, huh, let’s

hear some damage, man.

They didn’t violate his rights, but I still

want to know what their theory of damages

is. Go ahead, tell us. I sat there waiting

patiently. What’s your theory about

damages? And I even waited here today to

figure out what it is. And I still don’t know.

So isn’t this great. You put two people at

risk with their personal bank accounts. This

is not a government lawsuit. You put two

people’s families at risk to a back computer –

bank accounts and they don’t ask you for

money or a dollar amount to give you any kind

of guidepost as to how to parse things out.

Seriously? That’s what we’re doing here. Just

come up with it, ladies and gentlemen. You

can figure this out. Come up with it, a

significant amount.

Id. at 115:23-116:14.

After Defense counsel finished his closing, court

recessed prior to Plaintiff’s rebuttal closing. Id. at 12526. Before bringing the jury back in, Plaintiff’s counsel

raised an issue about Defense counsel’s statements

App-66

indicating that Defendants were personally liable. Id.

at 126.

I would never have raised this in my

initial opening, but I think defense counsel

opened the door to it. I have their

interrogatory

response

where

they

acknowledge that the U.S. Government will

cover any liability held against these

defendants as long as they were acting within

the scope of their employment during the

pertinent time. So I think it was

inappropriate for defense counsel to suggest

to the jury that these defendants were

somehow -- their families are at risk, I think,

is the argument made by a personal

judgment. He said it multiple times, which is

not accurate and so I want to say something

to the jury about indemnification and that a

judgment would not come out of their pockets.

Id. at 126:21-127-7. Defense counsel argued that

Defendants “are not automatically indemnified at all

and that’s up to the U.S. Government to do that after

they request it.” Id. at 127:11-13. Recognizing that it

was also not automatic that Defendants would pay out

of their own pocket, I stated:

And so, that door has been opened and I’m

going to let plaintiffs have an opportunity to

address by, at least, saying that -- whatever

the interrogatory answer is the interrogatory

answer, so I’m going to allow that to be read

in because I think that it does leave an

impression with them.

App-67

It also invokes sympathy in a way that’s

inconsistent with the way instructions were,

so I think the door has been opened and I

think that the manner of doing that makes it

very succinct, because the interrogatory

answers address that specifically. And

whatever the answer is is the answer that’s

given by, so I’m going to allow it.

Id. at 127:17-128:2. Defendants lodged no objection.

Plaintiff’s counsel then gave her rebuttal closing and

responded to various points made by Defense counsel,

including:

Finally, I want to respond to defendants’

claim that Agent Hicks doesn’t have any

damages, which is just not true. First, there’s

a process in a lawsuit called discovery where

defendants and parties have to provide sworn

responses to the other side’s questions. And

there was a question about who would cover

the judgment in this case. Defendants are not

personally covering the judgments in this

case. Their families or whatever defense

counsel said are not at risk. This is not a

vacuum cleaner to their personal bank

accounts. That statement was wrong.

[Defense counsel]: I object to that, Your

Honor.

THE COURT: Why don’t you read the

interrogatory and the answer?

[Defense counsel]: You –

App-68

THE COURT: No, I’m not going to be hearing

it. We’ll have the interrogatory and the

answer, and the jury can draw the inferences

from it that they want draw.

[Plaintiff’s counsel]: The question is, “If any

person or entity may be liable to satisfy all or

part of a possible judgment in this action or to

indemnify or reimburse for payments made to

satisfy any judgment in this action, describe

the terms of any such agreement or

arrangement.”

And the sworn response was, “The U.S.

Government will cover any liability held

against Officer Ferreyra and Officer Phillips

as long as he was acting within the scope of

his employment during the pertinent times.”

And he certainly was, because he was on

duty, both of these officers, as U.S. Park

Police officers.

Id. at 131:3-132:5.

After the jury began deliberations, a question was

submitted to the Court: “If we award any damages,

will defendants be paying directly or will the

government be paying?” Id. at 136-24-135:4. After

sharing the jury’s question with counsel, in the

absence of the jury, I suggested the following:

Now, I’m not inclined to do more than

just simply reiterate what two things they’ve

already been told. Number one is, they have

been told that it is agreed that the defendants

were acting under color of state law. So that’s

one thing that they know. And we had the

App-69

interrogatory answer that was read to them,

and so they have that information. They have

been told that information.

I’m not going to add another instruction.

I’m not inclined to add another instruction,

because I think that we have to tell them that

the only information they have, they’ve

already been provided and they have to make

the best choice they can based upon that.

Id. at 135:5-16. The parties responded:

[Plaintiff’s counsel]: That approach sounds

good to us.

[Defense counsel]: We agree, Your Honor.

Id. at 135:18-19. Before bringing in the jury, I

repeated the approach to counsel.

THE COURT: All right. Now, do we -- I want

to – I want to refer to the instruction on -under color of state law, that they were acting

under color of state law, refer to the number

and I want to -- I want to -- we can either just

say, you have -- you had the interrogatory

answer read to you and that information is

already before you. Based upon those two

things that will provide you with all the

information that we can give to you about

your question. Is that -- that’s the approach

I’m suggesting. No problem with that from

you all.

Id. at 135:20-136:4. Neither party objected. I then

brought the jury in and instructed them as follows:

App-70

Ladies and gentlemen, the question that

we have that was provided to us this

afternoon states, “If we award any damages,

will the defendant be paying directly or will

the government be paying?”

What I want to -- what I can provide to

you in response to your question is, is that the

information that you have available to you to

decide the case, you have already received

and it’s now -- the evidence is closed and we

cannot give you new additional information

you have not already received.

There are two areas that you have

already heard that can provide you with

information that addresses the question you

asked. The first is Jury Instruction Number

23, which is that there was an agreement,

because Officers Ferreyra and Phillips were

officers of the United States Park Police at

time of events, they were acting under color

of law. That has been established.

So, that instruction you are not to single

out as separate, apart from all the others. You

have to consider that in addition to the

everything else.

And the second piece of information you

have already received from which you can do

the best you can to move forward on this point

is the interrogatory answer that [Plaintiff’s

counsel] read to you during her rebuttal

where the interrogatory question asked the

question that touches upon this issue and the

App-71

response that was given. That information

with this interrogatory – with this Jury

Instruction 23 and all the other ones

considered together should provide you with

the information that we are allowed to

provide you on that question, all right.

And now, we’ll let you go on back and

continue on with your deliberations

Id. at 136:16-137:21. The jury asked no other

questions.

Defendants now assert that allowing the jury to

receive evidence of indemnification, especially with no

curative instruction, was prejudicial error. Mot. Mem.

15. Defendants also assert that the interrogatory

answer that was read to the jury was incomplete

because it was based on Defendants’ counsel’s

understanding and not a statement made by

Defendants. Mot. Mem. 17 n.8. As Plaintiff correctly

notes, however, this issue is a self-inflicted wound, as

it was the Defendants themselves who opened the door

during their closing argument by making multiple

highly-charged emotional remarks about Defendants’

bank accounts and families being put at risk for

paying a damages award, clearly seeking to suggest to

the jury—without any supporting evidence in the

record—that the Defendants would be personally

responsible to pay any judgment rendered against

them, which was untrue, and was a clear appeal to the

jury for sympathy to the Defendants, contrary to Jury

Instruction No. 9, which cautioned against letting

sympathy for either party rule their verdict. See

Resp. 15. And as Defendants themselves argued,

“[t]he remarks of counsel were required to be confined

App-72

to the evidence admitted in the case and reasonable

inferences drawn therefrom.” Ayoub v. Spencer, 550

F.2d 164, 170 (3d Cir. 1977). Defendants’ counsel’s

behavior warranted a response.

In a trial, if a defendant offers testimony of an

inability to pay damages, a plaintiff will be permitted

to introduce indemnification evidence. See Jones v.

Allen, Civil Action No. PX-15-1173, 2016 WL 9443772,

at *8 (D. Md. 2016) (citing Lawson v. Trowbridge, 153

F.3d 368, 379-80 (7th Cir. 1998); Christmas v. City of

Chicago, 691 F. Supp. 2d 811, 819 (N.D. Ill. 2010)). In

Lawson, the defendants introduced evidence of their

inability to pay, but the trial court would not permit

the introduction of indemnification evidence in

response. 153 F.3d at 379. The appellate court ruled

post-trial that a new trial on damages (not liability)

was required because the defendants had “opened the

door concerning who likely would pay any judgment

against them, and the district court abused its

discretion in not allowing [plaintiff] to rebut by telling

the jury who likely would pay.” Id. at 380. Of course,

the situation that arose here is different because no

evidence was introduced during trial, but rather

Defendants raised the issue—not once, but several

times—during closing arguments after the close of

evidence. However, the principle remains relevant—a

wrong impression left with the jury should be cured if

possible, even by evidence that would not have been

permitted under the general rule. Here, the only

opportunity for any cure was through either a curative

App-73

instruction 10 by the Court or in Plaintiff’s rebuttal as

requested.

Neither party asked for a curative instruction by

the Court. Plaintiff proposed the reading of the

interrogatory answer as part of the rebuttal closing.

Although Defendants objected, they did not offer an

alternative cure for the impression they had left with

the jury, nor did they ask for any additional

instruction in response to the reading. In my

discretion, I determined that reading Defendants’ own

words to the jury was an appropriate response. The

interrogatory answer was not provided to the jury as

evidence and was not repeated in response to the

jury’s question.

Defendants note that the introductory sentence

was not included in the reading, but they did not object

at the time nor request that it be clarified. The

inclusion of the sentence also would not have changed

the essential substance of the reading. Finally,

Defendants also note the post-trial confirmation from

the U.S. Attorney’s Office that indemnification is not

guaranteed, but Plaintiff’s counsel told the jury that

“the U.S. Government will cover any liability held

against these defendants . . . .” Reply 1-2. These were

Defendants’ own words that Plaintiff’s counsel read to

the jury. Also, the confirmation from the U.S.

Attorney’s Office was not new information;

Defendants argued at the time that Plaintiff proposed

reading the interrogatory answer that indemnification

10 The Fourth Circuit “has concluded that curative instructions

eliminate prejudice from improper closing arguments . . . .”

United States v. Benson, 957 F.3d 218, 235 (4th Cir. 2020).

App-74

was not automatic. Neither was it automatic that

Defendants would have to pay personally, which is

what Defendants sought to have the jury believe in

their closing argument. The jurors were given

balancing information, and it was left in their capable

hands to weigh the arguments and return a verdict.

Under the circumstances, I am not persuaded that

the indemnification evidence read to the jury during

Plaintiff’s rebuttal argument to counter Defendants’

improper arguments on damages resulted in prejudice

to the Defendants or a miscarriage of justice.

Therefore, I shall not exercise my discretion to grant a

new trial on damages.

IV. Excessive Damages

Finally, Defendants contend that the damages

award was excessive and unsupported by the

evidence. Mot. Mem. 21. Whether a jury award is

excessive is a question of law. Konkel v. Bob Evans

Farms, Inc., 165 F.3d 275, 280 (4th Cir. 1999). If the

court finds that a jury award is excessive, it may

“grant a new trial nisi remittitur, which gives the

plaintiff the option of accepting the remittitur or of

submitting to a new trial.” Cline v. Wal-Mart Stores,

Inc., 144 F.3d 294, 305 n.2 (4th Cir. 1998). Under the

process of remittitur, the Court orders a new trial

unless the plaintiff accepts a reduced damages award.

Atlas, 99 F.3d at 593.

“[J]ury determinations of factual matters such as

. . . the amount of compensatory damages will be

reviewed by determining whether the jury’s verdict is

against the weight of the evidence or based on

evidence which is false.” Id. at 594. The court

App-75

considers the “miscarriage of justice” prong when a

defendant challenges the amount of punitive damages

awarded, because “[t]he jury’s determination of the

amount of punitive damages . . . is not a factual

determination . . . but is, rather, an almost

unconstrained judgment or policy choice about the

severity of the penalty to be imposed.” Id. Although it

is based on “the jury’s underlying factual

determinations about the defendant’s conduct[,] . . .

the factual record provides no direct foundation for the

amount of punitive damages.” Id. Therefore, “a court

cannot generally test the amount of a punitive damage

award against record facts.” Id. Indeed, “policy-related

elements—e.g., the likelihood that an award will deter

the defendant or others from engaging in similar

conduct—are . . . more appropriately decided by the

trial judge,” whose “unique vantage point and day-today experience with such matters lend expertise and

consistency.” Id. I shall address the damages

arguments in turn, first compensatory damages and

then punitive damages.

A. Compensatory Damages

Monetary damages are available to Agent Hicks

for the humiliation, embarrassment, and emotional

suffering that he experienced as a result of

Defendants’ Fourth Amendment violations. See Davis

v. Passman, 442 U.S. 228, 234, 245 (1979)

(“Historically, damages have been regarded as the

ordinary remedy for an invasion of personal interests

in liberty.” (quoting Bivens, 403 U.S. at 395));

Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299,

307 (1986) (“[C]ompensatory damages may include not

only out-of-pocket loss and other monetary harms, but

App-76

also such injuries as ‘impairment of reputation . . .,

personal humiliation, and mental anguish and

suffering.’” (quoting Gertz v. Robert Welch, Inc., 418

U.S. 323, 350 (1974))). However, Defendants contend

that Agent Hicks failed to identify with any specificity

how his alleged emotional injuries were tied causally

to the unconstitutional conduct. Mot. Mem. 24. They

also argue that there was no evidence that Agent

Hicks sought or received medical attention, nor was

there sufficient corroboration of his emotional

distress. Id. at 25.

Discussing

damages

for

deprivation

of

constitutional rights under § 1983, the Fourth Circuit

stated that compensatory damages “may not be

presumed from every constitutional violation, but

must be proven by competent, sufficient evidence.”

Price v. City of Charlotte, N.C., 93 F.3d 1241, 1250 (4th

Cir. 1996) (citing Carey v. Piphus, 435 U.S. 247, 26263 & n. 20 (1978)). The Price court indicated that

sufficient evidence to prove compensatory damages

can include testimony from the plaintiff:

[A] plaintiff’s testimony, standing alone, can

support an award of compensatory damages

for emotional distress based on a

constitutional

violation;

however,

the

testimony must establish that the plaintiff

suffered demonstrable emotional distress,

which must be sufficiently articulated;

neither conclusory statements that the

plaintiff suffered emotional distress nor the

mere fact that a constitutional violation

occurred supports an award of compensatory

damages. In marshaling the evidence

App-77

necessary to establish emotional distress

resulting from a constitutional violation,

Carey instructs us that “genuine injury” is

necessary.

93 F.3d at 1254 (quoting Carey, 435 U.S. at 264). Of

course, “conclusory statements that the plaintiff

suffered emotional distress” will not suffice.

Knussman, 272 F.3d at 640. “The plaintiff must

adduce sufficient evidence ‘that such distress did in

fact occur and that its cause was the constitutional

deprivation itself and cannot be attributable to other

causes.’” Id. at 639-40 (quoting Price, 93 F.3d at 1250).

In Knussman, the Fourth Circuit provided a

number of factors to which a court may look to

determine whether an award for compensatory

damages is excessive. Id. They include:

medical attention resulting from the

emotional

duress;

psychiatric

or

psychological treatment; the degree of such

mental distress; the factual context in which

the emotional distress developed; evidence

corroborating the testimony of the plaintiff;

the nexus between the conduct of the

defendant and the emotional distress;

mitigating circumstances, if any; physical

injuries suffered as a result of emotional

distress; and loss of income, if any.

Id. at 640. Agent Hicks credibly testified at trial about

the emotional distress he suffered as a result of

Defendants’ Fourth Amendment violations. Although

Defendants argue that Agent Hicks’s trauma was

mostly (if not entirely) related to having a gun pointed

App-78

at him, which was not the constitutional violation,

Agent Hicks’s testimony was not limited to his fearing

for his life at the beginning of the first encounter. He

also testified about his humiliation at being detained

and feeling belittled by the disparaging behavior

(cursing, sneering, verbal assaults), as well as feeling

upset and scared by the ordeal. Tr. 85-92, July 6, 2021,

ECF No. 158. He testified that he felt alone and

helpless, being the only African-American male

surrounded by all Caucasian USPP officers and not

knowing what might yet happen, especially once the

motorcade passed by. Id. He was embarrassed by his

co-workers seeing him held on the side of the road

when the motorcade passed by without being able to

join it. Id. He explained that his work was a significant

source of personal pride, and this was the first time in

his 20-year career that he’d been unable to complete a

work assignment. Id. Agent Hicks testified that he

became emotionally upset by the events that day and

that he later broke down and cried; he’d only ever cried

before when his grandmother and father passed away.

Id. He also stated that he was scarred by the two

encounters and the emotional impact was still

affecting him and impacting his relationships with his

co-workers and family. Id. Agent Hicks described how

the incidents made him fear for his family, especially

given how easily a situation could escalate with tragic

consequences should his son or daughter be stopped

by the police. Id. He testified that his sleep was

negatively affected, and that he still wakes up reliving

the experience in vivid detail. Id. And every time

there’s a media event of police misconduct, he relives

the events of that day. Id. Further, Agent Hicks

testified that he sought psychological counseling for

App-79

the first time in his life, although because of his work

travel, he only attended two sessions. Id.

Additionally, Agent Miltom Wilson 11 credibly

testified about Agent Hicks’s emotional injuries,

having observed Agent Hicks about six weeks after the

incidents looking distressed and subdued, which was

inconsistent with prior encounters with Agent Hicks.

Id. at 246-258. On being asked what was wrong, Agent

Hicks related what had occurred in his encounters

with the park police. Id. Agent Wilson followed up

with Agent Hicks afterwards over the telephone and

in person and noted further decline in his demeanor

and emotional state. Id. The jury found Agent Hicks’s

testimony and Agent Wilson’s corroborating testimony

credible, as do I. There is sufficient evidence of

genuine injury caused by the Plaintiffs’ constitutional

violations to support an award of compensatory

damages. See Carey, 435 U.S. at 264 n.20 (“Although

essentially subjective, genuine injury in this respect

may be evidenced by one’s conduct and observed by

others.”).

Damages for emotional distress, humiliation, and

embarrassment are “perhaps the most difficult

damages to quantify. . . unique to each plaintiff.” In re

Air Crash Disaster at Charlotte, N.C. on July 2, 1994,

982 F. Supp. 1115, 1129 (D.S.C. 1997). There was no

requirement for Agent Hicks to place a number on his

suffering but rather leave it to the jury to quantify the

harm in economic terms. See Merriweather v. Family

Dollar Stores of Ind., Inc., 103 F.3d 576, 581 (7th Cir.

Currently, Deputy Assistant Director Wilson but Agent

Wilson at the time of the events being testified about.

11

App-80

1996) (“We are not convinced that psychological

injuries are readily amendable [sic] to such

quantification, and forcing such a burden of proof upon

a plaintiff would make compensatory damages nigh

unto impossible to recover.”). The jury was instructed

to “determine an amount of money that is fair

compensation for Agent Hicks’s damages.” Final Jury

Instruction No. 33, ECF No. 148. The jury was also

instructed:

You may award compensatory damages only

for injuries that Agent Hicks proves by a

preponderance of the evidence were caused by

the Officers Ferreyra’s and/or Phillips’s

allegedly wrongful conduct.

The damages that you award must be fair

compensation—no more and no less.

You may award compensatory damages

for any pain, suffering, or mental anguish

that the Agent Hicks experienced as a

consequence of Officer Ferreyra’s and/or

Phillips’s actions. No evidence of the

monetary value of such intangible things as

pain and suffering has been, or need be,

introduced into evidence. There is no exact

standard

for

fixing

the

monetary

compensation to be awarded for these

elements of damage. Any award you make

should be fair in light of the evidence

presented at the trial.

In determining the amount of any

damages you decide to award, you should be

guided by common sense. You must use sound

App-81

judgment in fixing an award of money

damages, drawing reasonable inferences

from the facts in evidence. You may not

award money damages based on sympathy,

speculation, or guesswork.

Id. The jury was also instructed that it could “award

nominal damages if you conclude that the only injury

that a plaintiff suffered was the deprivation of his

constitutional rights, without any resulting physical,

emotional or financial damage.” Id. at 34. According to

the Fourth Circuit, I can assume that the jurors

followed their instructions. Stamathis v. Flying J,

Inc., 389 F.3d 429, 442 (4th Cir. 2004) (“A jury is

presumed to follow the instructions of the court.”).

I do not find that the jury’s award of $80,000

against Officer Ferreyra, and $125,000 against Officer

Phillips, for a total of $205,000 in compensatory

damages is against the weight of the evidence.

Although sizeable, the award is not beyond the

outermost award that could be sustained for the

psychological harm suffered by Agent Hicks under

these circumstances. And it appears that the jury

considered whether Officer Phillips caused additional

mental anguish by stopping Agent Hicks within

minutes of him being released from the first

encounter, no doubt experiencing relief at being finally

freed, only to be pulled over by Officer Phillips and

further detained without cause. Therefore, I shall

DENY Defendants’ request for remittitur of the

compensatory damages awarded.

App-82

B. Punitive Damages

Punitive damages may be awarded in a Bivens

suit. Carlson, 446 U.S. at 21 (quoting Bivens, 403 U.S.

at 397). In addition to punishing the wrongdoer,

punitive damages serve as a deterrent “and are

especially appropriate to redress the violation by a

Government official of a citizen’s constitutional

rights.” Id. If an award is unconstitutionally excessive,

it is the duty of the court to set it aside. Cline, 144 F.3d

at 306. Here, the jury found that Officers Ferreyra and

Phillips “acted with malice or reckless indifference” to

Agent Hicks’s constitutional rights and awarded

punitive damages of $225,000 against Officer

Ferreyra and $300,000 against Officer Phillips. Jury

Verdict 2, 3. 12

When, as here, a punitive damages award is

challenged, the court considers three factors: “(1) the

degree of reprehensibility of the defendant’s

misconduct; (2) the disparity between the actual or

potential harm suffered by the plaintiff and the

punitive damages award; and (3) the difference

between the punitive damages awarded by the jury

and the civil penalties authorized or imposed in

comparable cases.” Wallace v. Poulos, 861 F. Supp. 2d

587, 603 (D. Md. 2012) (quoting State Farm Mut. Auto.

Ins. Co. v. Campbell, 538 U.S. 408, 418 (2003)). This

analysis “ensure[s] that defendants have fair notice

about the potential penalty they face for engaging in

12 The jury was instructed that they should consider the degree

to which the Defendants “should be punished for their wrongful

conduct” as well as the degree to which an award “will deter

Defendants or persons like them from committing wrongful acts

in the future.” Jury Instruction No. 35.

App-83

prohibited conduct”; without this notice, “the punitive

damages award violates due process.” Id. at 604.

Under the first factor, the court considers

[W]hether: the harm caused was physical as

opposed to economic; the tortious conduct

evinced an indifference to or a reckless

disregard of the health or safety of others; the

target of the conduct had financial

vulnerability; the conduct involved repeated

actions or was an isolated incident; and the

harm was the result of intentional malice,

trickery, or deceit, or mere accident.

Id. (quoting State Farm, 538 U.S. at 419). Defendants

argue that Agent Hicks was not physically harmed,

was not targeted as being financially vulnerable, and

that his injuries were the result of an isolated

incident. Mot. Mem. 29. They also argue that there

was no evidence of malice or of a reckless disregard for

anyone’s health or safety. Id. However, the jury

unanimously concluded that Defendants’ actions were

not reasonably necessary and that they acted with

malice or reckless disregard. Jury Verdict 2, 3, 5.

Sufficient evidence supports the finding that

Officer Ferreyra decided to detain Agent Hicks

unnecessarily and deliberately cause him to miss his

motorcade assignment with no probable cause or

reason to investigate, knowing that Agent Hicks was

an on-duty secret service agent. Officer Ferreyra did

not consider the potential risk of danger to the

motorcade’s protectee due to preventing Agent Hicks

from performing his duty. This was followed by

abusive language, belittling and demeaning remarks,

App-84

and spiteful, harassing behavior by both Defendants.

And to add insult to injury, just moments after he was

finally allowed to go, Agent Hicks was stopped again

unnecessarily by Officer Phillips, who demanded his

license and registration despite knowing who Agent

Hicks was, and the demeaning behavior continued.

The harm was not economic, nor was it physical, but

the jury found that Agent Hicks was emotionally

damaged by Defendants’ actions. Potential harm from

the Defendants’ actions must be also considered; for

example, had Agent Hicks not stayed calm and

controlled during the ordeal, these trying events could

have led to a tragic outcome. See TXO Prod. Corp. v.

Alliance Resources Corp., 509 U.S. 443, 460-61 (1993)

(“It is appropriate to consider the magnitude of the

potential harm that the defendant’s conduct would

have caused to its intended victim if the wrongful plan

had succeeded, as well as the possible harm to other

victims that might have resulted if similar future

behavior were not deterred.”). Causing emotional

harm with malice is sufficient to support an award of

punitive damages, and certainly, the type of behavior

found by the jury is appropriate for both punishment

and deterrence.

The second and third factors require me to review

the ratio of compensatory to punitive damages, and

the amounts of comparable verdicts. Wallace, 861 F.

Supp. 2d at 603. As noted, the jury awarded Agent

Hicks a combined punitive damages award of

$525,000, which is less than three times the combined

App-85

compensatory damages award of $205,000. 13 The

Supreme Court has affirmed as constitutional

punitive damages awards “more than 4 times the

amount of compensatory damages.” Pacific Mut. Life

Ins. Co. v. Haslip, 499 U.S. 1, 23 (1991); see also State

Farm, 538 U.S. at 425 (“Single-digit multipliers are

more likely to comport with due process, while still

achieving the State’s goals of deterrence and

retribution.”); BMW of North America, Inc. v. Gore,

517 U.S. 559, 582 (1996) (“A higher ratio may also be

justified in cases in which the injury is hard to detect

or the monetary value of noneconomic harm might

have been difficult to determine.”). Of course, the

constitutional line is not “marked by a simple

mathematical formula.” Gore, 517 U.S. at 582. Under

the circumstances, punitive damages less than three

times the amount of compensatory damages is in line

with Supreme Court precedent.

Neither Defendants nor Plaintiff provide cases

that can truly be considered comparable. Defendants

cite Butler v. Windsor, in which I reduced a punitive

award that was three times the amount of

compensatory damages. Mot. Mem. 29-30 (citing

Butler v. Windsor, 143 F. Supp. 3d 332 (2015)). In

Butler, however, I reduced the award because it was

duplicative, not because it was excessive. See 143 F.

Supp. 3d at 341-42 (reducing the punitive damages

award of $50,000 on the state law claims to zero, but

the $100,000 punitive damages award on the federal

claim and $50,845 compensatory damages award were

I note that each individual Defendant’s ratios of punitive

damages to compensatory damages are also less than 3:1.

13

App-86

found reasonable). In that case, I also analyzed

numerous cases in the District of Maryland and the

Fourth Circuit and found a “reasonableness range of

$10,000 to $125,000 in punitive damages” per

defendant in those cases dating from 2001 to 2014. Id.

at 341. Under the circumstances here, I find that the

jury’s award of punitive damages is not

unconstitutionally excessive and does not “result in a

miscarriage of justice,” Knussman, 272 F.3d at 639,

and I shall DENY Defendants’ request for a new trial

nisi remittitur.

CONCLUSION

For the foregoing reasons, Defendants’ motion,

ECF No. 165, is DENIED. Judgment shall be entered

by separate order.

Dated: January 28, 2022.

/S/

Paul W. Grimm

United States District Judge

App-87

Appendix C

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Southern Division

________________

No. PWG-16-2521

________________

NATHANIEL HICKS,

v.

Plaintiff,

OFFICER GERALD L. FERREYRA, et al.,

Defendants.

________________

Filed: January 28, 2022

Document 176

________________

ORDER AND JUDGMENT

For the reasons stated in the Memorandum

Opinion signed this same date, it is hereby ORDERED

that:

1.

Defendants’ Omnibus Post-Trial Motion, ECF

No. 165, is DENIED;

2.

Judgment is hereby entered in favor of the

Plaintiff Nathaniel Hicks and against the

Defendant Gerald L. Ferreyra in the amount

of $305,000, which consists of $80,000

compensatory damages

and

$225,000

punitive damages;

App-88

3.

It is further ordered that judgment is entered

in favor of the Plaintiff Nathaniel Hicks and

against Brian A. Phillips in the amount of

$425,000, which consists of $125,000

compensatory damages

and

$300,000

punitive damages;

4.

It is further ordered that judgment is entered

in favor of Plaintiff, Nathaniel Hicks and

against Defendants, Gerald L. Ferreyra and

Brian A. Phillips, for costs in accordance with

Fed. R. Civ. P. 54(d)(1);

5.

Any and all prior rulings made by the Court

disposing of any claims against any parties

are incorporated by reference herein, and this

Order shall be deemed to be a Final

Judgment within the meaning of Federal

Rule of Civil Procedure 58;

6.

The Clerk is directed to send a copy of this

Order and accompanying Memorandum

Opinion to the parties; and

7.

The Clerk is directed to CLOSE this case.

Dated: January 28, 2022

/S/

Paul W. Grimm

United States District Judge

App-89

Appendix D

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

________________

No. 22-1339

(8:16-cv-02521-PWG)

________________

NATHANIEL HICKS,

Plaintiff-Appellee,

v.

OFFICER GERALD L. FERREYRA,

in his individual capacity;

OFFICER BRIAN A. PHILLIPS,

in his individual capacity,

Defendants-Appellants.

________________

Filed: May 26, 2023

Document 54

________________

ORDER

The petition for rehearing en banc was circulated

to the full court. No judge requested a poll under Fed.

R. App. P. 35. The court denies the petition for

rehearing en banc.

For the Court

/s/ Patricia S. Conner, Clerk

App-90

Appendix E

Excerpts of Transcripts

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Southern Division

________________

No. PWG-16-2521

________________

NATHANIEL HICKS,

v.

Plaintiff,

OFFICER GERALD L. FERREYRA, et al.,

Defendants.

________________

Greenbelt, Maryland

Proceedings Held: July 6, 2021

8:50 A.M.

Transcript Filed: August 18, 2021

Document 158

________________

TRANSCRIPT OF JURY TRIAL PROCEEDINGS

BEFORE THE HONORABLE PAUL W. GRIMM

UNITED STATES DISTRICT JUDGE

***

[176] * * *

Q

And do you recognize the plaintiff, Nathaniel

Hicks?

A

Yes.

App-91

Q

And how do you know Agent Hicks?

A

We were co-workers. I’ve worked with him a

handful of times.

Q

And how would you describe your relationship

with Agent Hicks, other than being co-workers?

A

No, I don’t know him outside of work, just the few

times I’ve worked with him.

Q

Did you have occasion to work with Agent Hicks

on the morning of July 11, 2015?

A

Yes.

Q

What were you doing on the morning of July 11th,

2015?

A

I was the assistant detail leader for a motorcade

from Washington, D.C. to Montclair, New Jersey

for the Secretary of Homeland Security, Jeh

Johnson.

Q

And you said detail a couple of times. Can you

describe what “detail” means for the jury?

A

A detail is a collection of agents that provide

safety and security for a specific protectee. In that

case, it was Jeh Johnson.

Q

And you’ve explained in general terms what an

assistant detail leader does. Is there anything in

particular that you did with respect to this

particular motorcade?

App-92

[177]

A

I would just be in charge of the motorcade, in

charge of the protectee’s safety and delegating

and organizing the shift agents throughout the

motorcade.

Q

In terms of the term, assistant detail leader, was

there a primary detail leader that day?

A

Yes, there is a primary detail leader, but he wasn’t

working that day. I was his delegate to working

his spot.

Q

So there was not a primary detail leader?

A

No, I was the supervisor that day.

Q

Now, I’m just going to take a step back here and

ask, in 2015, how often did Secretary Johnson

travel between Washington, D.C. and New

Jersey?

A

It was a weekly occurrence.

Q

Were you required to tell other law enforcement

agencies that the Secret Service would be

escorting the Secretary’s motorcade through the

cities that the motorcade passed through?

A

We did not.

Q

Did you have to get any sort of permission, from

any other law enforcement agencies for your

agents to travel through other cities while

escorting the Secretary?

A

We would only do it at our designation city when

we utilized them in the motorcade.

App-93

Q

And so for Secretary Johnson’s trips, did you ever

notify law enforcement agencies, for example, the

Park Police, that his motorcade would be

traveling through Baltimore or other regions?

[178]

A

Not the Park Police, only the in New Jersey, the

New Jersey State Police and Montclair Police.

***

App-94

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Southern Division

________________

No. PWG-16-2521

________________

NATHANIEL HICKS,

v.

Plaintiff,

OFFICER GERALD L. FERREYRA, et al.,

Defendants.

________________

Greenbelt, Maryland

Proceedings Held: July 7, 2021

9:05 A.M.

Transcript Filed: August 18, 2021

Document 159

________________

TRANSCRIPT OF JURY TRIAL PROCEEDINGS

BEFORE THE HONORABLE PAUL W. GRIMM

UNITED STATES DISTRICT JUDGE

***

[15] * * *

Q

Okay. Sir, where did you grow up?

A

I grew up in the Bronx, New York.

Q

All right. How long did you live in the Bronx?

A

Until about the age of approximately ten, when I

was ten year old.

App-95

[16]

Q

All right. Where did you go to school?

A

PS-7.

Q

Which is what?

A

Public School Seven in Bronx, New York.

Q

Any other schools up New York?

A

I went -- middle school was Mark Twain. And then

from there, I went to Mount Saint Michael

Academy in the ninth grade. Sacred Heart High

School in the 10th grade. And then East Ramapo

High School, 11th and 12th grade.

Q

Okay. Did you also go to a trade school for

refrigeration?

A

I did.

Q

You completed that?

A

Yes.

Q

And why is that?

A

My father owns a air conditioning company called

Amsterdam Air Cooling in New York City. So I

went to the Refrigeration Institute, about a six

month class.

Q

And how long did your father have that business

for?

A

Prior to me being born, him and his partner had

owned it.

Q

Okay. When did you start working?

A

When I was about 13, 13 years old.

App-96

Q

What did you do?

A

My first job, I worked in a bowling alley. I,

basically, cleaned up and picked up beer bottles

and took out garbage, whatever they needed.

[17]

Q

Okay. And how long did you do that for?

A

Until about the age of 15, fourteen, 15.

Q

And did you get a job after that?

A

Yes, I did. I worked at Pet Smart where --

Q

What did you do?

A

I picked up poop or pee; cleaned up. Occasionally

did other things, but that was my main function.

Q

How long did you work at Pet Smart? Where is the

Pet Smart?

A

It was in Rockland County. I don’t remember

exactly where, Rockland County, New York.

Q

Any other jobs?

A

Yeah, from there I worked at the local pizzeria

and then I worked for Iron Mountain.

Q

Iron Mountain, the company?

A

Yeah, the actual company, that storage facility.

Q

When did you do that?

A

I believe I was 19 years old. I'll say, about 1999 to

2000. And you want me to continue? Sorry.

Q

Okay. Did your parents immigrate to the United

States?

App-97

A

No, my grandparents did.

Q

From where?

A

My grandfather from Cuba and my grandmother

from Puerto Rico, part the U.S., but came from

there.

Q

So you’re Cuban and Puerto Rico?

[18]

A

Yes, sir.

Q

Tell the jury how you came to the Park Police?

A

I was applying for a lot of law enforcement

positions because a lot of my family is in law

enforcement; NYPD and various other agencies.

And I came across a application probably 2001,

2002.

Q

Okay. And did you become a Park Police officer?

A

I did.

Q

And what year?

A

I got the appointment in December, 2004 and my

official hire date was January 2nd, 2005.

***