Amicus Curiae Brief — Gerald L. Ferreyra, et al., Petitioners v. Nathaniel Hicks

Supreme Court briefNov 3, 2023

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No. 23-324

IN THE

Supreme Court of the United States

GERALD L. FERREYRA, ET AL.,

Petitioners,

NATHANIEL HICKS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF AMICUS CURIAE FEDERAL LAW

ENFORCEMENT OFFICERS ASSOCIATION

IN SUPPORT OF PETITIONERS

Thomas R. McCarthy

Counsel of Record

Tiffany H. Bates

ANTONIN SCALIA LAW SCHOOL

SUPREME COURT CLINIC

CONSOVOY MCCARTHY PLLC

1600 Wilson Boulevard

Suite 700

Arlington, VA 22209

(703) 243-9423

tom@consovoymccarthy.com

November 3, 2023

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES....................................... ii

INTEREST OF AMICUS CURIAE ............................ 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ............................................................... 2

ARGUMENT ............................................................... 4

I. The Fourth Circuit’s expansion of liability

conflicts with this Court’s efforts to limit Bivens

................................................................................4

II. Left uncorrected, the Fourth Circuit’s

expansion of Bivens liability will harm law

enforcement officers and the public they serve ....9

CONCLUSION .......................................................... 15

TABLE OF AUTHORITIES

CASES

Anderson v. Creighton,

483 U.S. 635 (1987) ............................................... 10

Barr v. Mateo,

360 U.S. 564 (1959) ............................................... 11

Bivens v. Six Unknown Named Agents,

403 U.S. 388 (1971) ................................ 1-10, 12-15

Briscoe v. LaHue,

460 U.S. 325 (1983) ........................................... 9, 13

Buchanan v. Barr,

71 F.4th 1003 (D.C. Cir. 2023)............................... 6

Butz v. Economou,

438 U.S. 478 (1978) ............................................... 11

Carlson v. Green,

446 U.S. 14 (1980) ............................................. 4, 11

Corr. Servs. Corp. v. Malesko,

534 U.S. 61 (2001) ............................................... 2, 5

Davis v. Passman,

442 U.S. 228 (1979) ................................................. 4

Egbert v. Boule,

596 U.S. 482 (2022) ................................. 2, 4, 5, 7, 8

Embody v. Ward,

695 F.3d 577 (6th Cir. 2012) ................................... 9

Florida v. Jardines,

569 U.S. 1 (2013) ..................................................... 7

Gregoire v. Biddle,

177 F.2d 579 (2d Cir. 1949) .................................. 11

iii

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ................................... 10, 13, 14

Hartman v. Moore,

547 U.S. 250 (2006) ................................................. 9

Hernández v. Mesa,

885 F.3d 811 (5th Cir. 2018) ................................... 8

Hernández v. Mesa,

140 S. Ct. 735 (2020) ................................... 2, 4, 5, 7

New York v. Quarles,

467 U.S. 649 (1984) ............................................... 13

Oregon v. Elstad,

470 U.S. 298 (1985) ............................................... 12

Pub. Utils. Comm’n v. Pollak,

343 U.S. 451 (1952) ................................................ 7

Puerto Rico Aqueduct Sewer Auth. v. Metcalf

Eddy, 506 U.S. 139 (1993) .............................. 11, 12

Rodriguez v. United States,

575 U.S. 348 (2015) ................................................. 9

Scheuer v. Rhodes,

416 U.S. 232 (1974) ........................................... 9, 10

Spalding v. Vilas,

161 U.S. 483 (1896) ............................................... 10

United States v. Davies,

768 F.2d 893 (7th Cir. 1985) ................................... 9

United States v. Leon,

80 F.4th 1160 (10th Cir. 2023) ............................... 9

United States v. Sharpe,

470 U.S. 675 (1985) ................................................. 8

Wilkie v. Robbins,

551 U.S. 537 (2007) ............................................. 2, 9

Ziglar v. Abbasi,

582 U.S. 120 (2017) ................... 2, 3, 4, 5, 6, 7, 8, 12

STATUTES AND REGULATIONS

28 C.F.R. §50.15 (c)(3) ............................................... 14

54 U.S.C. §102701(a)(1) .............................................. 6

OTHER AUTHORITIES

Associated Press, The U.S. is Experiencing a Police

Hiring Crisis, NBC (Sept. 6, 2023),

perma.cc/L2VB-U6GV...........................................13

Bureau of Justice Statistics, Office of Justice

Programs, U.S. Department of Justice, Federal

Law Enforcement Officers, 2020 – Statistical

Table (Sept. 2022), perma.cc/3HZN-6A4H ...........12

Lyle Denniston, Webster Bivens’ Story – An Update

After a Half-Century, Nat. Const. Ctr. (Oct. 12,

2016), perma.cc/5XZT-FAHG ...............................15

Dep’t of Justice, Tort Litigation, perma.cc/F5LXA84F ......................................................................14

Nicolas Dubina, Police Departments Struggling to

Recruit New Officers Amid Shortages, WETM

(May 18, 2023), perma.cc/6L3Z-DGYZ .................13

Theodore Eisenberg & Stewart Schwab, The

Reality of Constitutional Tort Litigation,

72 Cornell L. Rev. 641 (1987) ...............................11

Federal Tort Claims Act: Hearing on S. 1775

Before the Subcomm. on Agency Admin. of

the S. Comm. on the Judiciary,

97th Cong. 144 (1982) .....................................12, 14

Larry K. Gaines, Victor E. Kappeler & Zachary A.

Powell, Policing in America (9th ed. 2021) ..........13

Police Exec. Rsch. F., The Workforce Crisis, And

What Police Agencies Are Doing About It (Sept.

2019) ......................................................................13

U.S. Amicus Br., Chavez v. Martinez, 538 U.S. 760,

2002 WL 31100916................................................13

INTEREST OF AMICUS CURIAE 1

The

Federal

Law

Enforcement

Officers

Association (FLEOA) is a nonpartisan, nonprofit

professional association that exclusively represents

federal law enforcement officers throughout the

United States. FLEOA is a volunteer organization and

represents more than 32,000 federal law enforcement

officers from over 65 agencies. Since its inception in

1977, FLEOA’s primary purpose has been to provide

legal assistance to the federal law enforcement

community.

Amicus has a strong interest in this case because

the Fourth Circuit’s opinion exposes its members to

new, judicially created Bivens suits. Such an

unwarranted expansion of Bivens endangers both the

public and the officers who protect it. Amicus thus

urges the Court to grant the petition and reverse the

decision below.

1 Pursuant to this Court’s Rule 37.6, counsel for amicus

curiae certifies that this brief was not authored in whole or in

part by counsel for any party and that no person or entity other

than amicus curiae or its counsel has made a monetary

contribution to the preparation or submission of this brief. The

parties received timely notice of this brief.

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

In Bivens v. Six Unknown Named Agents, 403 U.S.

388, 389 (1971), this Court recognized a right of action

for damages against Federal Bureau of Narcotics

officers who subjected Bivens to an invasive “stem to

stern” warrantless search of his apartment and (still

without a warrant) arrested and shackled him in front

of his wife and children. Bivens has been criticized as

“a relic of the heady days in which this Court assumed

common-law powers to create causes of action.” Corr.

Servs. Corp. v. Malesko, 534 U.S. 61, 75 (2001) (Scalia,

J., concurring). In the half century since it was

decided, this Court has adopted a “far more cautious

course” in allowing recovery under a judicially created

cause of action. Ziglar v. Abbasi, 582 U.S. 120, 132

(2017). Indeed, the Court has “consistently rebuffed

requests to add to the claims allowed” under Bivens.

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

In doing so, the Court has repeatedly “caution[ed]”

the lower courts against applying Bivens to new

contexts. Egbert v. Boule, 596 U.S. 482, 491 (2022).

The warning was clear—if a lower court finds even “a

single ‘reason to pause before applying Bivens in a

new context,’” it should do so. Id. Congress, after all,

“is in a far better position than a court to evaluate the

impact of a new species of litigation against those who

act on the public’s behalf.” Wilkie v. Robbins, 551 U.S.

537, 562 (2007) (internal quotation marks omitted).

Ignoring this warning, the Fourth Circuit

massively expanded Bivens liability to all

“warrantless-search-and-seizure” claims involving

“routine criminal law enforcement.” Pet. App. 12. In

this case, Officers Ferreyra and Phillips—two U.S.

Park Police officers—briefly detained Nathaniel

Hicks—a Secret Service agent—after finding him

sleeping in his work vehicle with a holstered gun in

plain view near the National Security Agency. The

officers allowed him to remain in his car while they

called a supervisor and verified his identity. According

to the court below, Bivens applied because there was

no meaningful difference between Bivens and this

case. No matter that this case involved only a brief

roadside detention and routine traffic stop while

Bivens concerned an invasive warrantless search and

seizure. No matter that this was a different claim

against officers who operate in a different sphere

under a different “legal mandate.” Abbasi, 582 U.S. at

139-40. The Fourth Circuit’s decision sweeps far

beyond the scope of Bivens, conflicts sharply with this

Court’s warning against applying Bivens in new

contexts, and is incompatible with the Court’s effort to

limit Bivens and its progeny.

As a practical matter, expanding Bivens to impose

liability on officers in such routine circumstances will

result in significant negative consequences for federal

law enforcement officers and the agencies that employ

them. Opening new and expansive avenues of liability

will deter federal law enforcement officers from acting

promptly and effectively in carrying out their duties.

It may also expose those officers to personal financial

liability. Those costs would discourage talented

candidates from joining and staying on the force. At a

time when law enforcement departments are critically

short staffed and under immense public pressure,

increased liability would significantly deter officers

from acting, resulting in harm to those who depend on

them.

If left uncorrected, the Fourth Circuit’s expansion

of Bivens would harm federal law enforcement officers

and the public they are sworn to protect. The Court

should grant the petition and reverse the decision

below.

ARGUMENT

I. The Fourth Circuit’s expansion of liability

conflicts with this Court’s efforts to limit

Bivens.

For 50 years, this Court has “consistently

rebuffed” attempts to expand liability for federal law

enforcement officers under Bivens. Hernández, 140 S.

Ct. at 743. In the decades following Bivens, it has only

twice fashioned new causes of action under the

Constitution. See Davis v. Passman, 442 U.S. 228

(1979) (Fifth Amendment’s Due Process Clause);

Carlson v. Green, 446 U.S. 14 (1980) (Eighth

Amendment’s Cruel and Unusual Clause). And it “has

consistently refused to extend Bivens to any new

context or new category of defendants.” Abbasi, 582

U.S. at 135. As the Court has repeatedly explained,

“creating a cause of action is a legislative endeavor.”

Egbert, 596 U.S. at 491. Thus courts must proceed

with the utmost caution when considering even a

modest expansion of Bivens.

Despite acknowledging that “expanding the

Bivens remedy is now a ‘disfavored’ judicial activity,”

the court below ignored the guardrails this Court has

placed on Bivens. Pet. App. 9. Instead, the court

extended Bivens to a whole new class of federal

officers and to a sweeping range of conduct that does

not come close to resembling the events in Bivens.

That expansion defies this Court’s “caution toward

extending Bivens remedies into any new context”—“a

caution consistently and repeatedly recognized for

[many] decades.” Malesko, 534 U.S. at 74.

The clarity of the Court’s “test for determining

whether a case presents a new Bivens context”

underscores the Fourth Circuit’s departure from it.

Abbasi, 582 U.S. at 139. “If the case is different in a

meaningful way from previous Bivens cases decided

by th[e] Court, then the context is new,” id., and “a

court may not recognize a Bivens remedy.” Egbert, 596

U.S. at 492 (internal citation omitted). This is so even

if the claim “is based on the same constitutional

provision as a claim in a case in which a damages

remedy was previously recognized.” Hernández, 140 S.

Ct. at 743. “A case might differ in a meaningful way,”

however, based on several factors, including “the rank

of the officers involved; the constitutional right at

issue; the generality or specificity of the official

action;” “the statutory or other legal mandate under

which the officer was operating;” or “the presence of

potential special factors that previous Bivens cases

did not consider.” Abbasi, 582 U.S. at 139-40. And

again, if it differs in any of these “meaningful way[s],”

there is no Bivens claim. Id. at 139.

Yet the Fourth Circuit treated this test as a

suggestion. And it discounted the meaningful

differences at play. Abstracting to a level of generality

that obscures those differences, the court concluded

that Respondent Hicks sought “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.” Pet. App. 53. That claim, as the Fourth Circuit

framed it, was just like Bivens. Id. And thus the court

concluded the myriad differences present here did

“not constitute a meaningful difference for [its]

purposes.” Pet. App. 15 n.2.

But a brief roadside detention by Park Police

arising from a routine traffic stop presents a new

context meaningfully different from Bivens. Although

this case involves a Fourth Amendment claim arising

from a warrantless search-and-seizure, the brief

roadside detention is different from the actions in

Bivens in both degree and kind. Bivens involved an

excessive force claim against Federal Bureau of

Narcotics agents who pursued drug dealers. Those

agents allegedly entered Bivens’ home without a

warrant, “manacled” him in front of his family, ripped

his home apart “stem to stern,” and strip searched him

at a federal courthouse. Bivens, 403 U.S. at 389.

The officers here, by contrast, are U.S. Park

Police, who operate in a different sphere under a

different “legal mandate.” Abbasi, 582 U.S. at 139-40.

Rather than tracking down drug dealers in their

homes, Park Police “maintain law and order” at

federal parks and “protect individuals and property”

within those parks. 54 U.S.C. §102701(a)(1). This

includes patrolling federal highways for suspicious

persons or vehicles in “sensitive location[s]” like the

National Security Agency. Buchanan v. Barr, 71 F.4th

1003, 1009 (D.C. Cir. 2023). As the court below

acknowledged, “Hicks’s home was not searched, and

the officers did not arrest Hicks or use excessive force

against him.” Pet. App. 12. Instead, Officers Ferreyra

and Phillips conducted a commonplace traffic stop on

a federal highway, outside of a federal agency, where

privacy interests are significantly diminished. See

Florida v. Jardines, 569 U.S. 1, 6 (2013) (“[W]hen it

comes to the Fourth Amendment, the home is first

among equals.”); Pub. Utils. Comm’n v. Pollak, 343

U.S. 451, 464 (1952) (“However complete [the] right of

privacy may be at home, it is substantially limited”

when an individual “travels on a public

thoroughfare.”).

All these differences are meaningful here. And

they are enough to establish that this is a “new

context.” In fact, this Court has declined to extend

Bivens liability to cases with “almost parallel

circumstances” to Bivens. Egbert, 596 U.S. at 495. In

those excessive force cases, the Court called the

similar “mechanism of injury” “superficial” at best and

determined Bivens did not apply. Id. These officers

and these actions are a far cry from those facts.

While the factual differences alone are enough to

foreclose a Bivens action, “the presence of potential

special factors” also counsels against expanding

Bivens here. Abbasi, 582 U.S. at 139-40. A court “may

not recognize a Bivens remedy” “[i]f there is even a

single ‘reason to pause before applying Bivens in a

new context.’” Egbert, 596 U.S. at 492 (quoting

Hernández, 140 S. Ct. at 743).

Several reasons exist here. To start, “the decision

to recognize a damages remedy requires an

assessment of its impact on governmental operations

systemwide.” Abbasi, 582 U.S. at 136. That is a job for

Congress. “[E]ven in a particular case, a court likely

cannot predict the ‘systemwide’ consequences of

recognizing a cause of action under Bivens.” Egbert,

596 U.S. at 493. “That uncertainty alone is a special

factor that forecloses relief.” Id.; see Hernández v.

Mesa, 885 F.3d 811, 818 (5th Cir. 2018) (en banc)

(“The newness of this ‘new context’ should alone

require dismissal.”). Indeed, extending Bivens liability

to any unreasonable search or seizure found to violate

the Fourth Amendment—no matter where the

violation occurs, or what type of officer is responsible

for the violation—significantly expands the scope of

personal liability for federal law enforcement officers.

This dramatic expansion of Bivens liability will

inevitably affect federal law enforcement officers and

how they carry out their duties. See infra part II.

Congress, not the court, should decide whether and

how to balance expansive new Bivens liability with the

resulting negative effects on federal law enforcement.

This is especially so given the far-reaching

implications of applying Bivens to commonplace police

conduct. If left to stand, the Fourth Circuit’s

expansive reading of Bivens may permit damages

suits whenever a warrantless search or seizure occurs,

exposing law enforcement officers conducting routine

stops to Bivens liability. Terry stops, for example, like

the one here by Officer Phillips, involve the brief

detention of potential suspects. Officers routinely

conduct these stops. And litigants often challenge

these stops as unwarranted or unduly prolonged. See

United States v. Sharpe, 470 U.S. 675 (1985);

Rodriguez v. United States, 575 U.S. 348 (2015);

United States v. Leon, 80 F.4th 1160 (10th Cir. 2023);

United States v. Davies, 768 F.2d 893 (7th Cir. 1985);

Embody v. Ward, 695 F.3d 577 (6th Cir. 2012). Yet

under the Fourth Circuit’s decision, every defendant

who was briefly stopped could bring a Bivens suit.

Leaving the Fourth Circuit’s decision untouched

“would invite an onslaught of Bivens actions” allowing

litigants to sue officers for simply detaining them for

a time that plaintiffs believe is a few minutes too long.

See Wilkie, 551 U.S. at 562. Such a massive expansion

of liability cannot possibly co-exist with this Court’s

limitations. E.g., Hartman v. Moore, 547 U.S. 250, 267

(2006) (Ginsburg, J., dissenting) (observing that

Bivens is a remedy in “‘rare cases’”). Simply put, the

Fourth Circuit’s rule transforms Bivens from a rare

remedy for extreme misconduct to a commonplace

remedy for minor grievances.

II. Left uncorrected, the Fourth Circuit’s

expansion of Bivens liability will harm law

enforcement officers and the public they

serve.

Allowing the Fourth Circuit’s immense expansion

of Bivens would have detrimental consequences for

federal law enforcement officers and the public they

serve. “[T]he public interest requires” prompt

“decisions and action to enforce laws for the protection

of the public.” Scheuer v. Rhodes, 416 U.S. 232, 241

(1974). But the threat of personal liability can deter

and distract officers from the “effective performance of

their [] public duties.” Briscoe v. LaHue, 460 U.S. 325,

343 (1983). Indeed, such liability could “seriously

cripple the proper and effective administration of

public affairs as entrusted to” law enforcement.

Spalding v. Vilas, 161 U.S. 483, 498 (1896).

This Court has long recognized that allowing

damage suits against government officials “entail[s]

substantial social costs” that threaten the public good.

Anderson v. Creighton, 483 U.S. 635, 638 (1987). From

the start, the common law “recognized the necessity of

permitting officials to perform their official functions

free from the threat of suits for personal liability.”

Scheuer, 416 U.S. at 239; see also Harlow v.

Fitzgerald, 457 U.S. 800, 806 (1982) (“As recognized at

common law, public officers require this protection to

shield them from undue interference with their duties

and from potentially disabling threats of liability.”).

That immunity rests on two principles: “(1) the

injustice, particularly in the absence of bad faith, of

subjecting to liability an officer who is required, by the

legal obligations of his position, to exercise discretion;

[and] (2) the danger that the threat of such liability

would deter his willingness to execute his office with

the decisiveness and the judgment required by the

public good.” Scheuer, 416 U.S. at 239-40. Of course,

“[i]mplicit in the idea that officials have some

immunity” for their acts, “is a recognition that they

may err.” Id. at 242. But the entire “concept of

immunity assumes” that “it is better to risk some error

and possible injury from such error than not to

decide.” Id.

Expanding Bivens liability—as the Fourth Circuit

did here—would discourage law enforcement officers

from acting promptly and effectively. Fearing

potential liability, officers “may delay their actions,

may become formalistic by seeking to ‘build a record’

with which subsequently to defend their actions, or

may substitute ‘safe’ actions for riskier, but socially

more desirable, actions.” Theodore Eisenberg &

Stewart Schwab, The Reality of Constitutional Tort

Litigation, 72 Cornell L. Rev. 641, 652 (1987) (citation

omitted). Worse still, officials may “‘hesitate to

exercise their discretion” at all—“even when the

public interest required bold and unhesitating

action.’” Puerto Rico Aqueduct Sewer Auth. v. Metcalf

Eddy, 506 U.S. 139, 149 (1993) (Stevens, J.,

dissenting) (internal citation omitted); Carlson, 446

U.S. at 21 n.7. As Judge Learned Hand recognized a

half-century ago: “[T]o submit all officials ... to the

burden of a trial and to the inevitable danger of its

outcome would dampen the ardor of all but the most

resolute, or the most irresponsible, in the unflinching

discharge of their duties.” Barr v. Mateo, 360 U.S. 564,

571 (1959) (quoting Gregoire v. Biddle, 177 F.2d 579,

581 (2d Cir. 1949)). It is simply wrong to “subject those

who try to do their duty to the constant dread of

retaliation.” Barr, 360 U.S. at 572 (quoting Gregoire,

177 F.2d at 581).

Such threats are incompatible with “the vigorous

exercise of official authority.” Butz v. Economou, 438

U.S. 478, 506 (1978). To start, damages suits against

officers “consume time and energies which would

otherwise be devoted to governmental service.” Barr,

360 U.S. at 571. Just “the specter of a long and

contentious legal proceeding,” would itself “inhibit

government officials from exercising their authority

with the freedom and independence necessary to serve

the public interest.” Puerto Rico Aqueduct Sewer

Auth., 506 U.S. at 150. The “time and administrative

costs” of discovery and trial are often “significant.”

Abbasi, 582 U.S. at 134.

And the time and costs are magnified given the

size of the federal workforce. In 2020, the federal

government employed 136,815 full-time federal law

enforcement officers across 90 agencies. See Bureau of

Justice Statistics, Office of Justice Programs, U.S.

Department of Justice, Federal Law Enforcement

Officers, 2020 – Statistical Table, at 9 (Sept. 2022),

perma.cc/3HZN-6A4H. With tens of millions of law

enforcement encounters with the public each year,

many of those officers could spend more time in the

courtroom or defending themselves in depositions

than doing their jobs.

Nor should this Court expect federal law

enforcement officers to “pinch-hit for counsel” in

determining whether their decisions may result in

Bivens claim against them. Oregon v. Elstad, 470 U.S.

298, 316 (1985). Doing so would charge officers “with

responsibility

for

making

sophisticated

[c]onstitutional judgments, in the heat of action, about

questions which divide lawyers and judges even after

they have had the benefit of scholarly arguments and

leisurely deliberations.” Federal Tort Claims Act:

Hearing on S. 1775 Before the Subcomm. on Agency

Admin. of the S. Comm. on the Judiciary, 97th Cong.

144 (1982) (written statement of Donald J. Devine,

Director, Office of Personnel Management). “This

Court should ‘decline to place officers … in the

untenable position of having to consider, often in a

matter of seconds, whether to risk … incurring

personal liability in order to ‘neutralize’” a difficult,

dangerous, or “volatile situation confronting them.”

U.S. Amicus Br., Chavez v. Martinez, 538 U.S. 760,

2002 WL 31100916, at *25 (quoting New York v.

Quarles, 467 U.S. 649, 657-58 (1984)).

Moreover, extending liability to situations like

those here would hinder an agency’s ability to attract

and retain quality law enforcement officers. See

Harlow, 457 U.S. at 814 (explaining that extensive

liability imposes social costs, including “the

deterrence of able citizens from acceptance of public

office.”). Officer retention is already a nationwide

problem; there is “a shortage of police officers across

the country.” Associated Press, The U.S. is

Experiencing a Police Hiring Crisis, NBC (Sept. 6,

2023), perma.cc/L2VB-U6GV. “Fewer people are

applying to be police officers,” and more and more

officers are resigning or eligible for retirement. Id.; see

also Police Exec. Rsch. F., The Workforce Crisis, And

What Police Agencies Are Doing About It 8 (Sept.

2019). In 2019, 41 percent of police departments

reported worsening personnel shortages. Id. at 19-20.

This is in no small part due to “the exposure to

liability.” Nicolas Dubina, Police Departments

Struggling to Recruit New Officers Amid Shortages,

WETM (May 18, 2023), perma.cc/6L3Z-DGYZ.

According to one estimate, more than a quarter of law

enforcement officers have been sued at least once. See

Larry K. Gaines, Victor E. Kappeler & Zachary A.

Powell, Policing in America 341 (9th ed. 2021). And

due to the sheer number of police interactions,

damage suits “‘could be expected with some

frequency.’” Briscoe, 460 U.S. at 343 (internal citation

omitted). The threat of expansive Bivens liability thus

adds risks to an already-risky job. Those risks may, in

turn, discourage talented individuals from joining the

force at all and deter good officers from staying on.

The threat of personal financial liability also

contributes to low morale and affects officer

recruitment and retention. Since the 1980s, there has

been an “increasing frequency” of plaintiffs “filing

suits seeking damage awards against … government

officials.” Harlow, 457 U.S. at 817 n.29. While an

agency may indemnify an officer, “there is no right to

compel indemnification from the United States or an

agency thereof in the event of an adverse judgment.”

Dep’t of Justice, Tort Litigation, perma.cc/F5LXA84F. And even if indemnification is possible, it is

generally not available until after a judgment or

settlement. Id. (citing 28 C.F.R. §50.15 (c)(3)). Thus,

at best, Bivens leaves officers wondering whether the

government will cover their legal costs. At worst, it

represents “a wholesale exposure of Federal officials

to personal ruin based upon actions taken in the

performance of their duties.” Devine, supra, at 140-41.

And even if the government ultimately

indemnifies an officer, large damage awards can still

divert public resources and deplete the public fisc.

Those costs add up and “threaten[] the vitality of the

Government.” Id. The disproportionate damages

awarded here are telling. A jury awarded Respondent

Hicks a staggering $730,000 for sitting through a

welfare check and traffic stop. Hicks remained seated

in his vehicle, there was no physical injury to his

person or property, neither he or his car were

searched, and the whole encounter lasted for just over

an hour. In total, Hicks was compensated roughly

$11,231 for each minute that he sat in his car—based

solely on the alleged “humiliation, embarrassment,

and other emotional harm” of being briefly detained,

despite no “accompanying physical or economic

injuries.” Pet. App. 31. That is a far cry from Bivens,

where the plaintiff settled for $1,000 after officers

allegedly “entered his apartment” without a warrant,

“manacled” him in front of his family, ripped his home

apart “stem to stern,” and strip searched him at a

federal courthouse. 403 U.S. at 389; Lyle Denniston,

Webster Bivens’ Story – An Update After a HalfCentury, Nat. Const. Ctr. (Oct. 12, 2016),

perma.cc/5XZT-FAHG.

Extending

Bivens

and

allowing disproportionate damage awards will

encourage more lawsuits and make officers think

twice about acting.

In short, allowing the decision below to stand

would expose tens of thousands of federal law

enforcement officers to newfound liability. That

liability would have disastrous consequences for law

enforcement officers and the public they serve.

CONCLUSION

For these reasons, the Court should grant the

petition and reverse the decision below.

Respectfully submitted,