Petition for Writ of Certiorari — Jeremy Henning, Petitioner v. Donald V. Snowden

Supreme Court briefMar 4, 2024

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IN THE

Supreme Court of the United States

————

JEREMY HENNING,

Petitioner,

DONALD V. SNOWDEN,

Respondent.

————

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

————

PETITION FOR A WRIT OF CERTIORARI

————

EUGENE A. SOKOLOFF

MOLOLAMKEN LLP

300 North LaSalle St.

Chicago, IL 60654

(312) 450-6700

JEFFREY A. LAMKEN

Counsel of Record

LUCAS M. WALKER

ROBERT Y. CHEN

KAYVON M. GHAYOUMI

MOLOLAMKEN LLP

The Watergate, Suite 500

600 New Hampshire Ave., N.W.

Washington, D.C. 20037

(202) 556-2000

jlamken@mololamken.com

Counsel for Petitioner

QUESTION PRESENTED

This Court has repeatedly cautioned against extending

the implied damages remedy created in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,

403 U.S. 388 (1971). Before allowing putative Bivens

actions to proceed, courts must ask “whether the case presents a ‘new Bivens context’ ”—i.e., whether it is “ ‘meaningful[ly] ’ different from the three cases in which the

Court has [previously] implied a damages action.” Egbert

v. Boule, 596 U.S. 482, 492 (2022). If so, Bivens cannot be

extended where “ ‘special factors’ indicat[e] that the Judiciary is at least arguably less equipped than Congress to

‘weigh the costs and benefits of allowing a damages action

to proceed.’ ” Id. at 492. “[A]ny rational reason (even one)

to think that Congress is better suited to ‘weigh the costs

and benefits’ ” precludes Bivens’ extension. Id. at 496.

Here, the Seventh Circuit allowed a Bivens action arising from the alleged use of excessive force in effecting an

arrest, in a hotel lobby, pursuant to a warrant. The court

agreed that, while the arrest in Bivens occurred in the

plaintiff ’s home, the arrest here occurred in a location

open to the public. And while Bivens involved warrantless

conduct, the officer here was executing a judicially issued

warrant. Contrary to the decisions of other courts of appeals, the decision below deemed each of those differences

trivial; held they do not present a new Bivens context; and

allowed the Bivens claim to proceed. “Hotel” lobby “or

home, warrant or no warrant,” the court declared, there

was “no meaningful difference” from Bivens.

The question presented is:

Whether the court of appeals erred in allowing a Bivens

remedy in this case, where the claim arises from an arrest

made outside the home, in a place open to the public, pursuant to a warrant.

(i)

PARTIES TO THE PROCEEDINGS BELOW

Petitioner Jeremy Henning was the appellee in the

court of appeals.

Respondent Donald V. Snowden was the appellant in

the court of appeals.

The Carbondale, Illinois Quality Inn Hotel, “Cashier

Cindy,” and the Drug Enforcement Agency were defendants in the district court but did not participate in the

appeal that is the subject of this petition.

RELATED PROCEEDINGS

The following proceedings are directly related to this

case within the meaning of Rule 14.1(b)(iii):

United States Court of Appeals (7th Cir.):

• Snowden v. Henning, No. 21-1463 (judgment entered Nov. 3, 2023)

United States District Court (S.D. Ill.):

• Snowden v. Henning, No. 19-CV-01322 (final order

entered Mar. 4, 2021)

TABLE OF CONTENTS

Opinions Below ...........................................................

Statement of Jurisdiction ..........................................

Constitutional Provision Involved ............................

Preliminary Statement ..............................................

Statement ....................................................................

I. Legal Framework ..........................................

A. This Court’s Creation of Implied

Damages Actions Against

Federal Officers ......................................

B. This Court’s Two-Step Framework

for Assessing Proposed

Bivens Claims ..........................................

II. Proceedings Below .........................................

A. District Court Proceedings ....................

B. The Court of Appeals’ Decision .............

Reasons for Granting the Petition............................

I. The Courts of Appeals Are Divided on

the “New Context” Inquiry ...........................

A. The Circuits Are Divided Over

Whether Arrests Outside the

Home Present a New Bivens

Context .....................................................

B. The Circuits Are Divided on

Whether a Warrant Makes the

Context New ............................................

C. The Decision Below Is Wrong ...............

II. The Issues Are Recurring

and Important.................................................

(iii)

Page

TABLE OF CONTENTS—Continued

III. This Case Is an Ideal Vehicle .......................

Conclusion ...................................................................

Page

Appendix A – Opinion of the Court of Appeals

(June 27, 2023) ...................................................... 1a

Appendix B – Memorandum and Order of the

District Court (Mar. 3, 2021) ............................... 20a

Appendix C – Order of the Court of Appeals

Denying Rehearing (Nov. 3, 2023)...................... 33a

TABLE OF AUTHORITIES

Page(s)

CASES

Ahmed v. Weyker,

984 F.3d 564 (8th Cir. 2020) ............................. 16

Annappareddy v. Pascale,

996 F.3d 120 (4th Cir. 2021) ............................. 21

Belfrey-Farley v. Palmer,

No. 3:19-CV-1305, 2021 WL 2814885

(N.D. Tex. May 7, 2021).................................... 21

Bivens v. Six Unknown Named Agents of

the Fed. Bureau of Narcotics,

403 U.S. 388 (1971) ........................... 2-7, 9-17, 19-31

Bueno Diaz v. Mercurio,

442 F. Supp. 3d 701 (S.D.N.Y. 2020) ............ 29-30

Byrd v. Lamb,

990 F.3d 879 (5th Cir. 2021) ............................. 16

Cain v. Rinehart,

No. 22-1893, 2023 WL 6439438

(6th Cir. July 25, 2023) ..................................... 21

Campbell v. City of Yonkers,

Nos. 19-CV-2117, 19-CV-9444, 2023

WL 4867459 (S.D.N.Y. July 31, 2023) ............. 30

Cantù v. Moody

933 F.3d 414 (5th Cir. 2019) .......................... 16, 21

Carlson v. Green,

446 U.S. 14 (1980) ................... 5-7, 10, 12-13, 15, 27

Challenger v. Bassolino,

No. 18-CV-15240, 2023 WL 4287204

(D.N.J. June 30, 2023) ...................................... 29

Cienciva v. Brozowski,

No. 3:20-CV-2045, 2022 WL 2791752

(M.D. Pa. July 15, 2022) ................................... 29

TABLE OF AUTHORITIES—Continued

Page(s)

Corr. Servs. Corp. v. Malesko,

534 U.S. 61 (2001) ............................................ 5, 25

Davis v. Passman,

442 U.S. 228 (1979) ....................... 5-7, 10, 13, 15, 25

Donovan v. Lone Steer Inc.,

464 U.S. 408 (1984) ............................................ 18

Egbert v. Boule,

596 U.S. 482 (2022) ................................. 2-7, 13, 15,

18-19, 23-24, 26-29, 31

Farah v. Weyker,

926 F.3d 492 (8th Cir. 2019) ............................. 21

Florida v. White,

526 U.S. 559 (1999) ............................................ 17

Georgia v. Randolph,

547 U.S. 103 (2006) ............................................ 17

Goodale v. Seguin,

No. SA-22-CV-00031, 2022 WL

17084400 (W.D. Tex. Nov. 17, 2022) ................ 21

Greenlaw v. Klimek,

No. 4:20-CV-311, 2021 WL 6112784

(E.D. Tex. Dec. 27, 2021) .................................. 22

Harper v. Nedd,

71 F.4th 1181 (9th Cir. 2023) ............................ 27

Hernández v. Mesa,

140 S. Ct. 735 (2020) .............................. 6, 13, 23, 29

Hicks v. Ferreyra,

64 F.4th 156 (4th Cir. 2023)........................... 19, 31

Lange v. California,

141 S. Ct. 2011 (2021) ........................................ 17

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Lehal v. Cent. Falls Det. Facility Corp.,

No. 13-CV-3923, 2019 WL 1447261

(S.D.N.Y. Mar. 15, 2019) ............................... 29-30

Lewis v. Westfield,

640 F. Supp. 3d 249 (E.D.N.Y. 2022) .............. 29

Logsdon v. U.S. Marshal Serv.,

91 F.4th 1352 (10th Cir. 2024) ....................... 19-20

Massaquoi v. FBI,

No. 22-55448, 2023 WL 5426738

(9th Cir. Aug. 23, 2023) ..................................... 21

Mejia v. Miller,

61 F.4th 663 (9th Cir. 2023).............................. 16

New York v. Harris,

495 U.S. 14 (1990) .............................................. 17

Oliva v. Nivar,

973 F.3d 428 (5th Cir. 2020) ........... 12, 15-16, 21, 31

Payton v. New York,

445 U.S. 573 (1980) ............................................ 17

Plumhoff v. Rickard,

572 U.S. 765 (2014) ............................................ 18

Quinones-Pimentel v. Cannon,

85 F.4th 63 (1st Cir. 2023) ............................. 16, 20

Rivera v. Samilo,

370 F. Supp. 3d 362 (E.D.N.Y. 2019) .............. 30

Robinson v. Heinze,

655 F. Supp. 3d 1276 (N.D. Ga. 2023) ............. 29

Semayne’s Case,

5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194

(K.B. 1604) ......................................................... 17

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Style v. Mackey,

No. 17-CV-1691, 2020 WL 3055319

(E.D.N.Y. June 8, 2020).................................... 29

Xi v. Haugen,

68 F.4th 824 (3d Cir. 2023) ............................... 21

United States v. Leon,

468 U.S. 897 (1984) ............................................ 23

Utah v. Strieff,

579 U.S. 232 (2016) ......................................... 22-23

Young v. City of Council Bluffs,

569 F. Supp. 3d 885 (S.D. Iowa 2021) ............. 29

Ziglar v. Abbasi,

582 U.S. 120 (2017) ................................... 3, 6, 7, 13,

19, 22-23, 26-29

MT ex rel. Zubkova v. United States,

No. 3:22-CV-171, 2023 WL 2468948

(S.D. Cal. Mar. 10, 2023) .................................. 29

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. IV............................... 2, 4-5, 8, 11,

16-18, 20-21, 25, 30

U.S. Const. amend. V ............................................

U.S. Const. amend. VIII ..................................... 5, 27

STATUTES

5 U.S.C. § 413(b)(2) ................................................

28 U.S.C. § 1254(1) .................................................

28 U.S.C. § 1915A ...................................................

28 U.S.C. §§ 2671 et seq. ........................................

28 U.S.C. § 2679 ......................................................

42 U.S.C. § 1983 ......................................................

TABLE OF AUTHORITIES—Continued

Page(s)

USA PATRIOT Act, Pub. L. No. 107-56,

115 Stat. 272, § 1001 (2001) ...............................

LEGISLATIVE MATERIALS

Bivens Act of 2021, S. 3343,

117th Cong. (2021) ............................................

Bivens Act of 2021, H.R. 6185,

117th Cong. (2021) ............................................

EXECUTIVE MATERIALS

U.S. Dep’t of Justice, Policy on Use of

Force (July 2022),

https://www.justice.gov/jm/1-16000department-justice-policy-use-force ...............

Off. of the Inspector Gen., Report to

Congress on Implementation of Section

1001 of the USA PATRIOT Act, No.

23-115 (Sept. 2023),

https://oig.justice.gov/sites/default/

files/reports/23-115.pdf.....................................

JUDICIAL MATERIALS

Admin. Office of the U.S. Courts, Arrest

Warrant (Form AO 442), https://

www.uscourts.gov/forms/law-enforce

ment-grand-jury-and-prosecutionforms/arrest-warrant........................................

TABLE OF AUTHORITIES—Continued

Page(s)

OTHER AUTHORITIES

Int’l Ass’n of Chiefs of Police, Use of

Force Position Paper, https://

www.theiacp.org/sites/default/files/

2019-05/Use%20of%20Force%20Task%

20Force%20Recommendations_Final%

20Draft.pdf ........................................................

Joel F. Shults, Bystander Management is

Increasingly Critical Especially when

Unmanageable, https://national

police.org/main/bystander-manage

ment-is-increasingly-critical-especiallywhen-unmanageable .........................................

Arrest Made in an Attempted Unarmed

Carjacking Offense, Washington, D.C.

Metropolitan Police (Sept. 27, 2021),

https://mpdc.dc.gov/release/arrestmade-attempted-unarmed-carjackingoffense-unit-block-macdill-boulevardsouthwest ...........................................................

IN THE

Supreme Court of the United States

————

JEREMY HENNING,

Petitioner,

DONALD V. SNOWDEN,

Respondent.

————

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

————

PETITION FOR A WRIT OF CERTIORARI

————

Jeremy Henning respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Seventh Circuit.

OPINIONS BELOW

The court of appeals’ opinion (App., infra, 1a-19a) is

reported at 72 F.4th 237. The court of appeals’ denial of

Agent Henning’s petition for rehearing and for rehearing

en banc (App., infra, 33a) is unreported but available at

2023 WL 7284194. The district court’s order (App., infra,

20a-32a) is unreported but available at 2021 WL 806724.

STATEMENT OF JURISDICTION

The court of appeals entered judgment on June 27,

2023, App., infra, 1a-19a, and denied rehearing and rehearing en banc on November 3, 2023, id. at 33a. On Janu-

ary 25, 2024, Justice Barrett extended the time to file the

petition to March 4, 2024. No. 23A679. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the U.S. Constitution provides, in pertinent part, “[t]he right of the people to be

secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be

violated * * * .” U.S. Const. amend. IV.

PRELIMINARY STATEMENT

This case presents important and recurring issues that

have divided the circuits—and sown confusion among

district courts—over the availability of implied damages

actions under Bivens v. Six Unknown Named Agents of

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

Bivens, the Court created a damages action against federal agents accused of conducting an unreasonable, warrantless search and seizure inside the plaintiff ’s home in

violation of the Fourth Amendment.

Since Bivens, this Court has “come ‘to appreciate more

fully the tension between’ judicially created causes of

action and ‘the Constitution’s separation of legislative and

judicial power.’ ” Egbert v. Boule, 596 U.S. 482, 491 (2022).

In case after case, the Court has “emphasized that recognizing a cause of action under Bivens is ‘a disfavored

judicial activity.’ ” Ibid.

Consequently, federal courts faced with a “proposed

Bivens claim” must first consider “whether the case

presents ‘a new Bivens context.’ ” Egbert, 596 U.S. at 492.

A case presents a “new context” if it involves factual distinctions or legal issues that might alter the cost-benefit

balance that previously led this Court to recognize Bivens

remedies in one of the three decisions where this Court

has done so. See ibid. If the context is “new,” courts must

ask whether any “special factors” counsel against extending Bivens to that context. Ibid. “If there is even a single

‘reason to pause,’ ” courts “may not recognize a Bivens

remedy.” Ibid.

The Seventh Circuit’s decision in this case recognizes a

Bivens claim arising from the plaintiff ’s arrest in a hotel

lobby, pursuant to a warrant. The court acknowledged

that, whereas the arrest in Bivens took place in the

sanctity of the plaintiff ’s home, the arrest here occurred

in an area open to the public. App., infra, 17a-18a. The

court further acknowledged that, unlike the officers who

carried out the warrantless search and seizure in Bivens,

the officer here was executing a judicially issued warrant.

Ibid. The court, however, found those distinctions irrelevant. “Hotel or home, warrant or no warrant,” the court

stated, what mattered was that “the claims here and in

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

force during an arrest.” Ibid.

That reasoning defies this Court’s decision in Egbert.

Under Egbert, “a plaintiff cannot justify a Bivens extension based on ‘parallel circumstances’ with Bivens” alone.

596 U.S. at 501. Focusing on such parallels here, the court

of appeals overlooked the multiple ways the differences

between this case and Bivens alter “the costs and benefits

of allowing a damages action to proceed.” Ziglar v.

Abbasi, 582 U.S. 120, 136 (2017). It is not merely that public places do not enjoy the extraordinary solicitude

accorded to the home. Arrests that occur in public also

present different risks for law enforcement, including a

greater risk of bystander injury. And an officer executing

a warrant fulfills a judicially imposed duty—operating

under a different legal mandate—not implicated in

Bivens. Whether to permit damages actions in such cir-

cumstances is precisely the sort of question Congress is

better equipped than the courts to answer. That precludes

Bivens’ extension here.

In reaching the opposite conclusion, the decision below

exacerbates two square and acknowledged circuit conflicts. The First, Fifth, Eighth, and Ninth Circuits have

recognized that claims arising from searches and seizures

outside the home are meaningfully different from the inhome search and seizure challenged in Bivens. By contrast, the Fourth, Seventh, and Tenth Circuits have rejected such arguments. The First, Sixth, and Ninth Circuits

have held that conduct pursuant to a warrant is meaningfully different from the warrantless conduct in Bivens.

By contrast, the Seventh and Tenth Circuits have now

held that a warrant makes no difference.

Each of those square and acknowledged conflicts independently warrants review. But they also reflect a more

fundamental disagreement among the lower courts on the

nature of the differences that can render a context “new.”

If the courts of appeals cannot agree on the significance of

the home and warrants to Fourth Amendment Bivens

claims, something is seriously wrong. Review is warranted.

STATEMENT

This case concerns the implied cause of action for

damages this Court created in Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics, 403

U.S. 388 (1971). Since that decision, the Court has made

clear that, before allowing Bivens claims to proceed,

courts must ask whether the context is “new.” Courts thus

must ask whether there is any factual or legal difference

that might rationally be thought to alter the policy balance

that previously led this Court to create a cause of action

under Bivens. Egbert v. Boule, 596 U.S. 482, 492 (2022).

A context is also “new” if it involves a “potential special

factor[ ] that previous Bivens cases did not consider.”

Ibid. The court of appeals held below that the difference

in locations here—a home in Bivens versus a publicly

accessible hotel lobby—did not present a new Bivens

context. App., infra, 17a-18a. The court likewise dismissed the fact that, unlike in Bivens, the arrest here was

made pursuant to a warrant. Id. at 18a.

I. LEGAL FRAMEWORK

A. This Court’s Creation of Implied Damages

Actions Against Federal Officers

In 1971, Bivens created an implied damages action

against federal agents accused of conducting an unreasonable, warrantless search and seizure, inside the plaintiff ’s

home, in violation of the Fourth Amendment. The Court

has “extended [that] holding only twice.” Corr. Servs.

Corp. v. Malesko, 534 U.S. 61, 70 (2001). In Davis v. Passman, 442 U.S. 228, 248-249 (1979), the Court allowed a

congressional staffer to sue for sex-based discrimination

in violation of the Fifth Amendment. And in Carlson v.

Green, 446 U.S. 14, 19-23 (1980), the Court allowed the

family of a federal inmate to sue prison officials under the

Eighth Amendment for failing to treat his medical condition, resulting in his death. In each case, the Court found

“no special factors” to counsel “hesitation in the absence

of affirmative action by Congress.” Bivens, 403 U.S. at

396; Davis, 442 U.S. at 245, 247; Carlson, 446 U.S. at 19.

This Court has since “come ‘to appreciate more fully the

tension between’ judicially created causes of action and

‘the Constitution’s separation of legislative and judicial

power.’ ” Egbert, 596 U.S. at 491. “[C]reating a cause of

action,” the Court now recognizes, “is a legislative endeavor.” Ibid. “Congress is ‘far more competent than the

Judiciary’ to weigh [the relevant] policy considerations.”

Ibid. Consequently, in the four decades since Carlson, the

Court has “declined [12] times to imply a similar cause of

action for other alleged constitutional violations.” Id. at

486.

B. This Court’s Two-Step Framework for Assessing

Proposed Bivens Claims

Because judicial creation of damages actions is “a

disfavored judicial activity,” courts must evaluate any

“proposed Bivens claim” using a two-step analysis.

Egbert, 596 U.S. at 492.

First, a court must assess whether the claim “arises in

a new Bivens context”—that is, whether it differs “in a

meaningful way” from the three cases where this Court

has recognized Bivens actions (Bivens, Davis, or Carlson).

Ziglar v. Abbasi, 582 U.S. 120, 139, 147 (2017). Because

the Court’s “understanding of a ‘new context’ is broad,”

Hernández v. Mesa, 140 S. Ct. 735, 743 (2020), the “newcontext inquiry is easily satisfied,” Ziglar, 582 U.S. at 149.

Any factual or legal difference that alters “the costs and

benefits of implying a cause of action” gives rise to a “new

Bivens context.” Egbert, 596 U.S. at 496. So, too, can the

presence of “potential special factors that previous Bivens

cases did not consider.” Id. at 492. Relevant differences

include:

the rank of the officers involved; the constitutional

right at issue; the generality or specificity of the

official action; the extent of judicial guidance as to

how an officer should respond to the problem or

emergency to be confronted; the statutory or other

legal mandate under which the officer was operating;

the risk of disruptive intrusion by the Judiciary into

the functioning of other branches; or the presence of

potential special factors that previous Bivens cases

did not consider.

Ziglar, 582 U.S. at 139-140.

Consequently, plaintiffs cannot “justify a Bivens extension based on ‘parallel circumstances’ with Bivens” alone.

Egbert, 596 U.S. at 501. Nor is it enough to say that a claim

is “conventional” or involves the same “common and recurrent sphere of law enforcement.” Id. at 494-495 (internal

quotation marks omitted). Focusing on such “superficial

similarities,” the Court has warned, obscures important

differences that alter the policy balance—the “costs and

benefits”—involved in deciding whether to create a cause

of action. Id. at 495-496.

Second, if the context is new, “a Bivens remedy will not

be available if there are special factors counselling hesitation in the absence of affirmative action by Congress.”

Ziglar, 582 U.S. at 136 (quotation marks omitted). “ ‘[T]he

most important question is who should decide whether to

provide for a damages remedy, Congress or the courts?’ ”

Egbert, 596 U.S. at 492. “If there is a rational reason to

think that the answer is ‘Congress’—as it will be in most

every case—no Bivens action may lie.” Ibid. (citation

omitted). “If there is even a single ‘reason to pause,’ * * *

a court may not recognize a Bivens remedy.” Ibid.

Those two steps “often resolve to a single question:

whether there is any reason to think that Congress might

be better equipped to create a damages remedy.” Egbert,

596 U.S. at 492 (emphasis added). Given that “Congress

is ‘far more competent than the Judiciary’ to weigh” the

“policy considerations” relevant to “creating a cause of

action,” id. at 491, the answer will be “yes” in any case that

presents considerations different from those presented in

Bivens, Davis, and Carlson.

II. PROCEEDINGS BELOW

This case arises from the mid-day arrest of an indicted

drug trafficker in the lobby of a Carbondale, Illinois hotel.

App., infra, 21a.

A. District Court Proceedings

On September 10, 2019, a federal grand jury indicted

respondent Donald Snowden for methamphetamine distribution. App., infra, 4a; Dist. Ct. Dkt. 24-2. A warrant

directing Snowden’s arrest was issued that same day.

Dist. Ct. Dkt. 24-1. The duty to execute that warrant fell

to DEA Agent Jeremy Henning.

Around 12 p.m. on September 12, 2019, Agent Henning

arrived at the hotel where Snowden was staying. C.A.

App. 26; App., infra, 4a. According to Snowden, Agent

Henning had the front-desk clerk summon Snowden to the

front desk to pay for his stay. App., infra, 4a. Snowden

left his room and made his way to the lobby. Ibid. In the

lobby, Agent Henning allegedly rushed Snowden, pushed

him into a door and onto the ground, and punched him

several times, injuring him. Ibid.

While in pretrial detention, Snowden filed a pro se complaint against Agent Henning. App., infra, 4a. Among

other things, he asserted a Fourth Amendment claim for

excessive use of force, which the district court construed

as a Bivens claim. Id. at 4a-5a. 1

Snowden also sued the hotel, the front-desk clerk, and the DEA. The

district court dismissed those claims after screening Snowden’s

complaint under the Prison Litigation Reform Act, 28 U.S.C. § 1915A.

App., infra, 5a. Snowden did not challenge those rulings, id. at 6a-7a,

and they are no longer at issue. Snowden also asserted a state-law

battery claim against Agent Henning. Id. at 5a. As explained below,

that state-law claim is not directly at issue here. See p. 9-10 n.2, infra.

The district court granted Agent Henning’s motion to

dismiss, finding that Snowden’s claim would require

Bivens’ unwarranted expansion. App., infra, 26a. Following this Court’s two-step framework, the district court

first concluded that the claim was meaningfully different

from Bivens in at least two respects. Id. at 26a-27a. The

district court observed that the arrest in Bivens occurred

in the privacy of the plaintiff ’s home, while the arrest here

occurred in a hotel lobby open to the public. Ibid. The

public setting of Snowden’s arrest, the court ruled, was a

factual difference rendering this a “new context.” Id. at

26a. Moreover, the issue in Bivens was principally “the

constitutionality of [a] home entry, arrest, and search

without a warrant,” but Snowden’s claim involved only

“the right to be free from excessive force incident to an

otherwise lawful arrest.” Ibid. Finally, while the officers

in Bivens “lacked a warrant and probable cause” to make

the arrest, Agent Henning “acted pursuant to a warrant

issued after a finding of probable cause.” Id. at 27a.

Turning to the second step, the district court “ask[ed]

whether any special factors counsel hesitation in” extending Bivens “absent affirmative action by Congress.” App.,

infra, 25a. It ruled that “the existence of ” the Federal

Tort Claims Act (FTCA) “as a potential remedy” was one

such factor. Id. at 29a. The FTCA provides a federal

damages remedy against the United States for certain

tortious conduct. 28 U.S.C. §§ 2671 et seq. In the court’s

view, the FTCA “signaled that [Congress] does not want a

damages remedy against individual federal agents.” App.,

infra, 29a. 2

Snowden asserted no other federal claims. While Snowden had

asserted an Illinois-law battery claim, he resisted Agent Henning’s

motion to substitute the United States as a defendant under the

B. The Court of Appeals’ Decision

The Seventh Circuit reversed in relevant part. App.,

infra, 1a-19a.

1. The court of appeals “focus[ed]” its analysis “on the

first step” of this Court’s Bivens framework—“whether

Snowden’s Bivens claim arises in a ‘new context.’ ” App.,

infra, 8a. The court recognized that a context is “ ‘new ’ if

‘the case is different in a meaningful way from previous

Bivens cases.” Ibid. This “Court’s evolving Bivens guidance,” the court observed, “suggest[s] that a difference is

‘meaningful’ if it might alter the policy balance that initially justified the causes of action recognized in Bivens” (or

the two other cases in which the Court has recognized an

implied damages action, Davis v. Passman, 442 U.S. 228

(1979), and Carlson v. Green, 446 U.S. 14 (1980)). App.,

infra, 12a. “If a case involves facts or legal issues that

would require reweighing the costs and benefits of a

damages remedy against federal officials,” the court

explained, “then the difference is ‘meaningful’ because we

risk further encroachment on the legislative function

rather than simply applying controlling Supreme Court

precedent.” Ibid.

The court of appeals, however, found “no meaningful

difference between Snowden’s case and Bivens to suggest

that he should not be able to pursue [his] excessive-force

claim.” App., infra, 15a. Snowden’s claim, the court obserWestfall Act, 28 U.S.C. § 2679, which would have allowed the claim to

proceed as a federal action under the FTCA. App., infra, 5a. The

district court denied substitution in accordance with Snowden’s

wishes. Id. at 30a. Having dismissed Snowden’s only federal cause of

action—the Bivens claim—the district court declined supplemental

jurisdiction over Snowden’s state-law battery claim. Id. at 31a.

Snowden never challenged the court’s decision not to exercise

supplemental jurisdiction. Id. at 6a-7a.

ved, had much in common with Bivens. “Agent Henning

operated under the same legal mandate as the officers in

Bivens—the enforcement of federal drug laws.” Id. at

15a-16a. Agent Henning was “also the same kind of linelevel federal narcotics officer as the defendant-officers

in Bivens.” Ibid. Moreover, “[l]ike Webster Bivens,”

Snowden “alleged that officers used unreasonable force in

an arrest.” Ibid. The court emphasized that “the legal

landscape of excessive-force claims is well settled, with

decades of circuit precedent” that give officers “clear

guidance on the level of force that is reasonable when

arresting a suspect who does not resist.” Id. at 16a.

2. The court of appeals rejected the argument that

Snowden’s claim implicated distinct policy interests—and

altered the cost-benefit balance of judicially creating a

cause of action—because it occurred in a place open to the

public, pursuant to a warrant, with no intrusion on the

sanctity of the home. The court acknowledged Agent

Henning’s argument that Bivens rested on “ ‘the right to

be free of unreasonable warrantless search and detention

in one’s own home and arrest in the absence of probable

cause,’ ” while Snowden’s claim was “rooted in ‘the right to

be free of excessive force in the context of a lawful arrest

in a public place pursuant to a warrant issued following a

finding of probable cause.’ ” App., infra, 17a. In the

court’s view, however, that argument “overlooks” that

Bivens also involved an excessive-force claim. Ibid.

The court acknowledged the “factual differences” between this case and Bivens, including “that the alleged

Fourth Amendment violations took place in different

locations (a hotel lobby here, a home in Bivens)” and that

Agent Henning “had a warrant (the officers in Bivens did

not).” App., infra, 18a. In the court’s view, those distinctions were “not sufficient to affect the Bivens inquiry.”

Ibid. The court acknowledged that, in other circuits, the

arrest’s location has rendered the context “new.” Thus, in

Oliva v. Nivar, 973 F.3d 438 (5th Cir. 2020), the Fifth

Circuit declined to extend Bivens from conduct within the

home to an arrest in a government building. App., infra,

18a. But the decision below held that the difference in

locations here—a home in Bivens versus an open-to-thepublic hotel lobby—was not “meaningful,” characterizing

both as a “private home or building.” Ibid. The court did

not address the different societal expectations about nonconsensual interactions in those two different locations;

the greater legal solicitude accorded the home; or the

higher bystander risks that exist when an area is open to

the public.

While emphasizing that Agent Henning and the defendants in Bivens both worked for agencies with “the same

legal mandate * * * —the enforcement of federal drug

laws,” App., infra, 15a, the court dismissed the difference

in their missions as “trivial,” id. at 18a. The officers in

Bivens were pursuing their agency’s investigative mandate, conducting a search and seizure without a warrant.

403 U.S. at 389-390. Here, Agent Henning was executing

a warrant, issued by the judicial branch, that commanded

Snowden’s arrest. App., infra, 4a.

Finally, the court of appeals was not persuaded that the

availability of a monetary remedy against the United

States under the FTCA presented a meaningful difference

from Bivens. The court of appeals invoked this Court’s

conclusion, in Carlson, that FTCA claims were not meant

to “displace a Bivens claim in the narrow cases where it is

available.” App., infra, 16a n.4.

“In short,” the Seventh Circuit concluded, “the factual

distinctions Henning emphasizes are of the ‘trivial’ kind

that ‘will not suffice to create a new Bivens context.’ ”

App., infra, 18a (quoting Ziglar, 582 U.S. at 149). “Hotel

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

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

force during an arrest.” Ibid.

REASONS FOR GRANTING THE PETITION

This Court has repeatedly made clear that the creation

of implied damages actions is “a disfavored judicial

activity.” Egbert v. Boule, 596 U.S. 482, 491 (2022);

Hernández v. Mesa, 140 S. Ct. 735, 742 (2020); Ziglar v.

Abbasi, 582 U.S. 120, 135 (2017). To the contrary, creating a new cause of action for damages is a quintessentially

legislative activity. Egbert, 596 U.S. at 491. Consequently, this Court has cautioned against extending Bivens and

the two other cases where the Court implied a cause of

action for damages. Ibid. Courts presented with potential

damages actions under Bivens must ask whether the claim

presents a “new Bivens context,” i.e., whether it involves

any “meaningful”—even if seemingly “small”—difference

from the three cases in which the Court has implied a

damages action. Ziglar, 582 U.S. at 149.

This Court’s “understanding of a ‘new context’ is

broad,” Hernández, 140 S. Ct. at 743, and the “newcontext inquiry” is “easily satisfied,” Ziglar, 582 U.S. at

149. If a claim involves new facts or legal issues that bear

on “the costs and benefits of implying a cause of action,”

the case presents a “new ” Bivens context and, “in all but

the most unusual circumstances,” must fail. Egbert, 596

U.S. at 486, 496. A context is likewise “new” if it raises

“potential special factors that previous Bivens cases did

not consider.” Ziglar, 582 U.S. at 139-140. Plaintiffs

cannot “justify a Bivens extension based on ‘parallel circumstances’ with Bivens, Passman, or Carlson” alone.

Egbert, 596 U.S. at 501.

Despite this Court’s guidance, the courts of appeals are

divided on the circumstances that are different enough to

make a context “new.” This case differs from Bivens in at

least two respects. First, the search and seizure challenged in Bivens took place in one of the most sacred and

protected locations—the home. By contrast, the arrest

here occurred in a place open to the public, a hotel lobby.

That different setting not only lacks the special solicitude

accorded the home; it also presents heightened risks to

bystanders. Second, while the plaintiff in Bivens was subjected to a warrantless search and seizure, Snowden’s

arrest here was directed by a judicially issued arrest warrant based on a finding of probable cause—indeed,

following Snowden’s indictment.

Recognizing that a rational legislature could think

those differences relevant to the costs and benefits of

authorizing a damages action, many courts of appeals have

held that arrests outside the home, and arrests made

pursuant to a warrant, are “new Bivens contexts.” Joining

other courts of appeals, however, the Seventh Circuit held

the opposite. “Hotel” lobby “or home, warrant or no warrant,” that court held, there was no meaningful difference

because “the claims here and in Bivens stem from run-ofthe-mill allegations of excessive force during an arrest.”

App., infra, 17a-18a.

The resulting circuit conflicts require review. Given the

demanding standard for extending Bivens, the newcontext analysis is often dispositive. The circuits’ divergent views thus make the threat of potential Bivens

liability a question of geography. That is untenable. The

limits on Bivens reflect separation-of-powers principles

that do not vary with the circuit in which a case arises. The

officers who risk their lives enforcing this Nation’s laws

deserve a predictable legal framework that does not

change when they cross circuit boundaries. Review is

warranted.

I. THE COURTS OF APPEALS ARE DIVIDED ON THE “NEW

CONTEXT” INQUIRY

The courts of appeals are firmly divided. At least four

circuits have found a new Bivens context based on whether a claim arises in the seclusion of the home, as in Bivens,

or in a place open to the public like the hotel lobby here.

Many courts of appeals likewise have distinguished the

warrantless actions challenged in Bivens from seizures

commanded by a judicially issued warrant. The legal and

practical differences between the warrantless, in-home

search and seizure at issue in Bivens, and the warranted,

public arrest in this case, raise precisely the sorts of

“policy considerations” that “Congress is ‘far more competent than the Judiciary’ to weigh.” Egbert, 596 U.S. at

491. But the Seventh Circuit, joined by other courts of

appeals, reached the opposite conclusion on both of those

differences.

A. The Circuits Are Divided Over Whether Arrests

Outside the Home Present a New Bivens Context

There is an entrenched, open, and acknowledged conflict over whether claims arising from law-enforcement

conduct outside the home present a new Bivens context.

At least four courts of appeals have held that they do. But

the decision below, and decisions of two other courts of

appeals, hold the opposite.

1. The First, Fifth, Eighth, and Ninth Circuits have

each recognized that claims arising from searches and

seizures outside the home are meaningfully different from

Bivens. The Fifth Circuit has held that “[v]irtually everything” that does not precisely mirror the facts in Bivens,

Davis, or Carlson presents “a ‘new context.’ ” Oliva v.

Nivar, 973 F.3d 438, 442 (5th Cir. 2020), cert. denied, 141

S. Ct. 2669 (2021); accord Byrd v. Lamb, 990 F.3d 879, 880

(5th Cir. 2021), cert. denied, 142 S. Ct. 2850 (2022). That

includes claims arising outside the home. Thus, in Byrd,

the Fifth Circuit found Fourth Amendment excessiveforce claims presented a new context in part because they

“arose in a parking lot, not a private home as was the case

in Bivens.” 990 F.3d at 882. In Oliva, that court found

similar claims, arising from an altercation at a VA hospital,

presented a new context because “a government hospital”

was a “meaningful[ly]” different setting from the “private

home” in Bivens. 973 F.3d at 442-443. And in Cantù v.

Moody, 933 F.3d 414 (5th Cir. 2019), cert. denied, 141 S.

Ct. 112 (2020), the Fourth Amendment falsified-evidence

claim presented a new context in part because the plaintiff

did “not allege the officers entered his home without a

warrant or violated his rights of privacy.” Id. at 423.

The First, Eighth, and Ninth Circuits have followed

suit. The First Circuit has held that claims arising from

an FBI raid of a private business presented a new context

because “no one’s home * * * was searched.” QuinonesPimentel v. Cannon, 85 F.4th 63, 71-72 (1st Cir. 2023).

The Eighth Circuit has likewise found the context “new”

where the defendant “did not enter a home,” because

“[t]he focus in Bivens was on an invasion into a home and

the officers’ behavior once they got there.” Ahmed v.

Weyker, 984 F.3d 564, 568 (8th Cir. 2020). And the Ninth

Circuit has found excessive-force claims arising from an

arrest on publicly managed lands presented a new context because, “importantly,” “none of the events in question occurred in or near [the plaintiff ’s] home.” Mejia v.

Miller, 61 F.4th 663, 668 (9th Cir. 2023).

2. Those decisions reflect the very different costbenefit balances—of individual, public, and law-enforce-

ment interests—that the distinct settings present. The

home is a place of special solicitude, while places open to

the public are not. And arrests in public settings can often

create potential risks to bystanders, including risk of

bystander intervention, that fundamentally alter the costs

and benefits of exposing officers to damages actions.

When it comes to individual interests, historical expectations, and legal principles, there is a vast gulf between

the home—“the center of the private lives of our people”—

and places open to the public. Georgia v. Randolph, 547

U.S. 103, 115 (2006). The “ ‘physical entry of the home is

the chief evil against which the wording’ ” of the Fourth

Amendment “ ‘is directed.’ ” New York v. Harris, 495 U.S.

14, 17-18 (1990). The Amendment thus draws “a firm line

at the entrance to the house.” Payton v. New York, 445

U.S. 573, 590 (1980). Outside the home, we expect to and

necessarily do interact with others: We may be approached

by strangers on the street; rub shoulders on the subway;

or bump into others at the grocery store. But the home

has for centuries been the bulwark against all that. Whatever intrusions on our persons we tolerate outside the

home, the “ ‘house of every one is as to him as his castle

and fortress, as well for his defen[s]e against injury and

violence, as for his repose.’ ” Lange v. California, 141 S.

Ct. 2011, 2022 (2021) (quoting Semayne’s Case, 5 Co. Rep.

91a, 91b, 77 Eng. Rep. 194, 195 (K.B. 1604)).

The law reflects those expectations. Law-enforcement

officers thus have “greater latitude exercising their duties

in public places” than they do in the home. Florida v.

White, 526 U.S. 559, 565 (1999); see Payton, 445 U.S. at

587 (noting the “distinction between a warrantless seizure

in an open area and such a seizure on private premises”).

Warrantless “entry into the public lobby of a motel and

restaurant” to serve a subpoena, for example, “is scarcely

the sort of governmental act which is forbidden by the

Fourth Amendment.” Donovan v. Lone Steer Inc., 464

U.S. 408, 413-414 (1984).

Arrests in public also present dramatically different

risks—an entirely different balance of public and lawenforcement interests—than arrests in the home. Confrontations with suspects in public locations can pose

immediate threats to bystanders. See, e.g., Arrest Made

in an Attempted Unarmed Carjacking Offense, Washington, D.C. Metropolitan Police (Sept. 27, 2021), https://

mpdc.dc.gov/release/arrest-made-attempted-unarmedcarjacking-offense-unit-block-macdill-boulevard-south

west. Or bystanders may intervene, placing themselves,

officers, or the suspects at risk. See, e.g., Joel F. Shults,

Bystander Management is Increasingly Critical Especially when Unmanageable, https://nationalpolice.org/

main/bystander-management-is-increasingly-critical-es

pecially-when-unmanageable.

The need to mitigate such threats quickly and decisively is among the most important factors in officer decisionmaking—and a key determinant in assessing the reasonableness of any use of force. See Plumhoff v. Rickard, 572

U.S. 765, 775-776 (2014). Indeed, imminent threats to bystanders are one of just two circumstances (along with

threats to officer safety) in which the Department of

Justice authorizes the use of deadly force. See U.S. Dep’t

of Justice, Policy on Use of Force (July 2022), https://

www.justice.gov/jm/1-16000-department-justice-policyuse-force.

Those differences plainly affect “the costs and benefits

of implying a cause of action.” Egbert, 596 U.S. at 496. A

rational legislature could certainly determine that, even if

private damages actions are warranted where officers are

accused of using excessive force on individuals within their

homes, a different result is warranted for arrests in public

places where the risk of bystander injury is greater. The

prospect of personal liability, legislators could conclude,

should not make officers hesitant to act decisively when

innocent lives may be at stake. In such cases, moreover,

the traditional solicitude accorded the home—the individual’s powerful interest in freedom from intrusion—is

absent as well. Under Egbert, that makes those differences “meaningful” and the context “new.” Indeed, this

Court has held that the presence of “potential special

factors that previous Bivens cases did not consider” is

sufficient to make the context “new.” Ziglar, 582 U.S. at

139-140. The risks to bystanders presented by arrests in

areas open to the public—and the corresponding importance of not deterring decisive action in that context—are

“potential special factors” Bivens “did not consider.” Ibid.

3. The Fourth, Seventh, and Tenth Circuits have nonetheless reached the opposite conclusion, rejecting the

argument that arrests outside the home—in places open

to the public—present a new Bivens context. The decision

below, for example, dismissed that difference as “ ‘trivial.’ ”

App., infra, 18a. “Hotel or home, warrant or no warrant,”

the Seventh Circuit declared, it is enough that Snowden’s

and Bivens’ claims both involved “run-of-the-mill allegations of excessive force during an arrest.” Ibid. The Tenth

Circuit “agree[s]” that the “location of the arrest” has “no

legal significance in an excessive-force case.” Logsdon v.

U.S. Marshal Serv., 91 F.4th 1352, 1357 (10th Cir. 2024)

(citing App., infra, 18a.). And the Fourth Circuit has held

that claims unrelated to the “search of a home” do not

present a new context, deeming an unreasonable-seizure

claim arising from a traffic stop “a replay” of Bivens.

Hicks v. Ferreyra, 64 F.4th 156, 167-168 & n.2 (4th Cir.

2023), cert. denied, 144 S. Ct. 555 (2024).

The conflict is open and acknowledged. Despite following the decision below and holding that the arrest’s location has “no legal significance in an excessive-force case,”

the Tenth Circuit has acknowledged “substantial authority to the contrary.” Logsdon, 91 F.4th at 1357. “[S]ome

circuits,” it observed, “have said that a new context arises

when the violation does not occur in the plaintiff ’s home.”

Ibid. In support, the court identified decisions of the Fifth

and Ninth Circuits. Ibid.

B. The Circuits Are Divided on Whether a Warrant

Makes the Context New

The courts of appeals likewise disagree on whether the

context is “new” where, unlike in Bivens, officers act pursuant to a warrant.

1. The Seventh Circuit below and Tenth Circuit have

now both held that whether an officer is “execut[ing] an

arrest warrant” is—along with the arrest’s location—

not relevant to the “new context” analysis in excessive

force cases. Logsdon, 91 F.4th at 1357; see App., infra,

18a (“warrant or no warrant,” “run-of-the-mill” excessiveforce claims do not present a new Bivens context). That

creates a square circuit conflict with, in the Tenth Circuit’s

terms, “substantial authority to the contrary.” Logsdon,

91 F.4th at 1357. “Several other circuits,” it observed,

“have said that a new Bivens context exists when federal

officials execute a valid warrant.” Ibid.; see id. at 1358

(acknowledging “differences with other circuits”).

2. The First, Sixth, and Ninth Circuits all agree that

whether officers are executing a warrant is a “meaningful

difference” from Bivens that gives rise to a “new context.”

In Quinones-Pimentel, the First Circuit found that

Fourth Amendment claims arising from the search of a

business presented a new context in part because, unlike

in Bivens, the searches were conducted pursuant to a

warrant. 85 F.4th at 71-72. The Sixth and Ninth Circuits

have held that even claims arising from searches or seizures inside private homes present new Bivens contexts

where the defendants were executing an unchallenged

warrant. See Cain v. Rinehart, No. 22-1893, 2023 WL

6439438, at *3 (6th Cir. July 25, 2023); Massaquoi v. FBI,

No. 22-55448, 2023 WL 5426738, at *2 (9th Cir. Aug. 23,

2023).

The Fifth Circuit has addressed a warrant’s relevance

to the “new context” inquiry only where the warrant was

challenged. Cantú, 933 F.3d at 423 (falsifying evidence to

obtain warrant “involves different conduct” than warrantless search and seizure in Bivens). 3 Given the Fifth Circuit’s holding that “[v]irtually everything” different from

the facts of Bivens renders the context “new,” Oliva, 973

F.3d at 442, the law of the Fifth Circuit is not doubtful.

Trial courts in the Fifth Circuit routinely apply Oliva to

find that excessive-force claims arising from execution of

an unchallenged arrest warrant present a new context.

See, e.g., Goodale v. Seguin, No. SA-22-CV-00031, 2022

WL 17084400, at *4 (W.D. Tex. Nov. 17, 2022); BelfreyFarley v. Palmer, No. 3:19-CV-1305, 2021 WL 2814885, at

The Third, Fourth, and Eighth Circuits have likewise addressed the

issue only in cases involving Fourth Amendment challenges based on

how the warrant was obtained. The Fourth Circuit held that

“searches and a seizure conducted with a warrant” implicate “a distinct Fourth Amendment guarantee” and present new contexts, as

Bivens involved the “right to be free of unreasonable warrantless

searches and seizures.” Annappareddy v. Pascale, 996 F.3d 120, 135

(4th Cir. 2021). The Third and Eight Circuits similarly hold that a

seizure challenged on the ground that officers obtained a warrant

without probable cause “involves different conduct” than the warrantless search and seizure in Bivens. Xi v. Haugen, 68 F.4th 824, 834

(3d Cir. 2023); Farah v. Weyker, 926 F.3d 492, 499 (8th Cir. 2019); see

Cantú, 933 F.3d at 423.

*5 (N.D. Tex. May 7, 2021); Greenlaw v. Klimek, No. 4:20CV-311, 2021 WL 6112784, at *5 (E.D. Tex. Dec. 27, 2021).

Those holdings faithfully reflect this Court’s precedents. In Ziglar, this Court identified differences in “the

statutory or other legal mandate under which the officer

was operating” as an example of differences “meaningful

enough to make the context a new one.” 582 U.S. at 139140. Recognizing that consideration’s relevance, the decision below emphasized that Agent Henning and the

defendants in Bivens both worked for agencies with “the

same legal mandate—the enforcement of federal drug

laws.” App., infra, 15a. But that assertion, like the similar

ruling of the Tenth Circuit, ignores the fundamentally

different “legal mandate” under which officers are

“operating” when they execute judicially issued arrest

warrants. Ziglar, 582 U.S. at 139-140.

A warrant is a judicial order. It “command[s] ” the officer “to arrest and bring [the named person] before a

United States magistrate judge without unnecessary

delay.” See Admin. Office of the U.S. Courts, Arrest Warrant (Form AO 442) (emphasis added), https://www.us

courts.gov/forms/law-enforcement-grand-jury-and-pro

secution-forms/arrest-warrant. Consequently, an officer

executing an arrest warrant is not performing a discretionary investigative function. He is carrying out the

court’s directive.

This Court emphasized precisely that in Utah v.

Strieff, 579 U.S. 232, 240-241 (2016). There, the Court explained, the officer was required to arrest the suspect pursuant to an outstanding warrant: “[O]nce Officer Fackrell

discovered the warrant” for Strieff ’s arrest, “he had an

obligation to arrest” him. Id. at 240 (emphasis added).

“A warrant is a judicial mandate to an officer to

conduct a search or make an arrest, and the officer

has a sworn duty to carry out its provisions.” Officer

Fackrell’s arrest of Strieff thus was a ministerial act

that was independently compelled by the preexisting warrant.

Ibid. (quoting United States v. Leon, 468 U.S. 897, 920 &

n.21 (1984)) (emphasis added).

Consequently, officers executing an arrest warrant

operate under an entirely different “legal mandate”: Far

from exercising discretionary investigative authority, as in

Bivens, officers executing arrest warrants are effectuating “a judicial mandate.” Strieff, 579 U.S. at 240 (emphasis added). Under Ziglar, that difference is “meaningful

enough to make [the] context a new one.” 582 U.S. at 139.

A reasonable legislature could certainly conclude that,

even if officers should confront possible personal monetary liability for how they conduct discretionary arrests,

the threat of such liability is inappropriate where a “judicial mandate” makes arrest obligatory. Strieff, 579 U.S. at

240.

C. The Decision Below Is Wrong

The decision below is on the wrong side of both circuit

conflicts. Because this Court’s “understanding of a ‘new

context’ is broad,” Hernández, 140 S. Ct. at 743, the “newcontext inquiry” is “easily satisfied,” Ziglar, 582 U.S. at

149. Any legal or factual difference that might affect “the

costs and benefits of implying a cause of action” is sufficient to render the case a “new Bivens context.” Egbert,

596 U.S. at 496.

As explained above, whether the arrest occurs in the

home, or in a place open to the public like a hotel lobby,

fundamentally alters “costs and benefits” of creating a da-

mages remedy. The individuals’ interest in freedom from

intrusion is at its apogee where, as in Bivens, they are in

the seclusion of their homes. But that interest is greatly

reduced in public settings. See pp. 17-18, supra. Arrests

in public settings create potential risks to bystanders that

weigh against exposing officers to damages actions. See

pp. 18-19, supra. And officers executing judicially issued

warrants operate under a different legal mandate than the

officers in Bivens. See pp. 22-23, supra.

1. The Seventh Circuit’s legalistic response contravenes precedent. Despite recognizing that the location of

the arrest (e.g., on government property) can make a

difference, the court declared there was no meaningful

difference between the arrests in this case and in Bivens

because both occurred in locations that can be characterized as a “private home or building.” App., infra, 18a.

Emphasizing perceived similarities between this case and

Bivens, the court declared that “the claims here and in

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

force during an arrest.” Id. at 17a-18a. And the court

urged that “the legal landscape of excessive-force claims

is well settled, with decades of circuit precedent.” Id. at

16a.

That defies rather than implements the Court’s directive in Egbert: A “plaintiff cannot justify a Bivens extension based on ‘parallel circumstances’ with Bivens” alone.

Egbert, 596 U.S. at 501. Nor is it enough to say that a claim

is “ ‘conventional’ ” or that it involves the same “ ‘common

and recurrent sphere of law enforcement’ ” in which

Bivens arose. Id. at 494-495. Equating a hotel lobby that

is open to the public with the seclusion of the home,

because both are “private property,” overlooks the

profoundly different expectations individuals have in each.

Such “superficial similarities” obscure important differ-

ences that alter the cost-benefit balance involved in

deciding whether to impose personal liability on lawenforcement officers. Ibid.

2. The Seventh Circuit’s reasoning overlooks another

meaningful difference from Bivens. Even when this Court

was still creating Bivens remedies, it considered whether

the complainant had alternative remedies. In Bivens,

Justice Harlan observed that, “[f]or people in Bivens’

shoes, it is damages or nothing.” 403 U.S. at 410 (Harlan,

J., concurring in judgment). In Davis v. Passman, 442

U.S. 228 (1979), the Court again emphasized the absence

of alternative relief: “For Davis, as for Bivens, it is damages or nothing.” Id. at 245 (quotation marks omitted). In

Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001),

this Court declined to extend Bivens because the circumstances were not such that “claimants in respondent’s

shoes lack effective remedies.” Id. at 72.

This case differs from Bivens in that respect, too. In

Bivens, this Court found that the principal state-law remedy for wrongful entry to the home, an action for trespass,

was unavailable to plaintiffs in Bivens’ position. 403 U.S.

at 394-395. Trespass actions cannot be asserted against

those who enter with consent. Id. at 394. As a result, such

actions offer no relief to those with federal agents at their

doorstep: If they let the agents enter, they forfeit their

state-law trespass remedy; the alternative, resisting

entry, “ ‘may amount to crime.’ ” Id. at 395. This potential

“inconsisten[cy]” between the “interests protected by

state laws regulating trespass and the invasion of privacy,

and those protected by the Fourth Amendment’s guarantee against unreasonable searches and seizures,” helped

persuade the Court to create its own implied damages

remedy. Id. at 394.

The court of appeals identified no such inconsistency

here. Plaintiffs like respondent Snowden, who claim they

were subjected to excessive force, can avail themselves of

state tort remedies like actions for battery. Snowden himself brought an Illinois-law battery claim seeking damages

for the same injuries that he contends support a Bivens

claim here. App., infra, 20a-21a; C.A. App. 26-27. The government certified that Agent Henning was acting within

the scope of his duties, allowing Snowden to seek money

damages against the United States under the Federal

Tort Claims Act. See pp. 9-10 n.2, supra. Since Bivens,

moreover, Congress has directed DOJ’s Office of Inspector General to “review information and receive complaints

alleging abuses of civil rights and civil liberties by employees and officials of the Department of Justice.” Pub.

L. No. 107-56, 115 Stat. 272, § 1001 (2001). 4

The availability of those remedies weighs decisively

against judicial creation of a Bivens remedy here. A “court

may not fashion a Bivens remedy if Congress already has

provided, or has authorized the Executive to provide, ‘an

alternative remedial structure.’ ” Egbert, 596 U.S. at 493.

This Court has repeatedly invoked such remedies in

declining to extend Bivens. See Ziglar, 582 U.S. at 144

(noting Congress’s requirement that the DOJ “ ‘review

and report semi-annually to Congress on any identified

abuses of civil rights and civil liberties in fighting terrorism’ ”). “So long as Congress or the Executive has created

a remedial process that it finds sufficient to secure an adequate level of deterrence, the courts cannot second-guess

The Office can investigate such allegations and refer individuals for

prosecution or administrative discipline. See 5 U.S.C. § 413(b)(2); Off.

of the Inspector Gen., Report to Congress on Implementation of

Section 1001 of the USA PATRIOT Act, No. 23-115 (Sept. 2023),

https://oig.justice.gov/sites/default/files/reports/23-115.pdf.

that calibration by superimposing a Bivens remedy.”

Egbert, 596 U.S. at 498. The availability of a tort remedy

for battery in this context, moreover, is a “potential special

factor[ ] that previous Bivens cases did not consider.”

Ziglar, 582 U.S. at 139-140. 5

The Seventh Circuit responded that the FTCA “does

not displace a Bivens claim in the narrow cases where

[Bivens] is available.” App., infra, 16a n.4. That is circular: That the FTCA does not displace Bivens claims in the

“narrow cases” where Bivens already provides a remedy

does not mean that the availability of alternative remedies

is irrelevant to whether the context is new. Just the opposite: That the FTCA provides a remedy here—that it is

not “Bivens or nothing”—precludes this from being

among the “narrow cases” in which a Bivens claim is available. See Harper v. Nedd, 71 F.4th 1181, 1187 (9th Cir.

2023) (context “novel” where it presents an “alternative

remedial structure” not available in Bivens).

Nor does Carlson v. Green, 446 U.S. 14 (1980), counsel

otherwise. App., infra, 16a-17a n.4. Carlson’s ruling that

the FTCA was not intended to displace Bivens may apply

in the Eighth Amendment context that Carlson presented.

But this Court has held that Carlson’s reasoning “carries

little weight” given “the last four decades of intervening

case law.” Egbert, 596 U.S. at 500-501. That Congress did

not wish to displace Bivens in contexts where it applies

does not answer whether Bivens applies to a new context

in the first instance. The “ ‘analytic framework’ prescribed

by the last four decades of intervening case law” makes

Congress has considered whether to create a cause of action and

declined to do so. In 2021, members of both houses introduced bills to

extend 42 U.S.C. § 1983’s cause of action to federal officers. See

Bivens Act of 2021, H.R. 6185, 117th Cong. § 2 (2021); Bivens Act of

2021, S. 3343, 117th Cong. § 2 (2021). Both bills died in committee.

clear that any alternative remedy precludes implying a

Bivens cause of action. Id. at 501.

3. The Seventh Circuit’s reasoning underscores a more

fundamental disagreement among the circuits. Courts

like the Seventh Circuit treat the “new context” inquiry as

judicial in nature—as employing a “familiar mode of

judicial reasoning” focused on “determin[ing] whether the

case before us fits within the [Supreme] Court’s” Bivens

“precedent.” App., infra, 12a.

That misconceives the inquiry. Because “creating a

cause of action is a legislative endeavor,” courts must

decide whether a legislature could think that some factual

or legal differences might alter “the costs and benefits of

implying a cause of action.” Egbert, 596 U.S. at 491, 496.

That is why courts “engaged in that unenviable task must

evaluate a ‘range of policy considerations at least as broad

as the range a legislature would consider,’ ” including

“ ‘economic and governmental concerns,’ ‘administrative

costs,’ and the ‘impact on governmental operations systemwide.’ ” Id. at 491 (ellipses omitted). And that is why

the “new-context inquiry” is “easily satisfied,” even by

“small” differences. Ziglar, 582 U.S. at 149. If Congress

could find differences meaningful, judicial creation of a

cause of action would improperly displace “Congress’ preeminent authority in this area.” Egbert, 596 U.S. at 492.

Consequently, the only question is whether “Congress

is better suited to ‘weigh the costs and benefits of

allowing a damages action to proceed.’ ” Egbert, 596 U.S.

at 496. “If there is a rational reason to think that the

answer is ‘Congress’—as it will be in most every case—no

Bivens action may lie.” Id. at 492 (citation omitted).

Federal courts may not “independently assess the costs

and benefits of implying a cause of action.” Id. at 496.

II. THE ISSUES ARE RECURRING AND IMPORTANT

This Court has repeatedly granted review to clarify

Bivens’ limited scope. See Egbert, 596 U.S. at 486 (collecting cases). Three times in the last six Terms, the Court

has admonished lower courts to be wary of extending

Bivens. See id. at 501; Hernandez, 140 S. Ct. at 742-743;

Ziglar, 582 U.S. at 135. Yet lower courts continue to reach

conflicting results when applying the new-context inquiry.

District courts confront these issues—and reach divergent results—with alarming frequency. Some find that an

officer’s execution of a warrant renders the context “new”

because it alters the “legal mandate” under which the

officers operate. 6 But others reject that argument. 7 And

others find a warrant sufficient to create a new context

without further analysis. 8

The arrest’s location has produced similar disarray.

Indeed, district courts in the Second Circuit are on both

sides of the issue. Some reject the “argument that the

location of [a] [p]laintiff ’s arrest—in public, rather than in

his home—constitutes a meaningful difference from

See, e.g., MT ex rel. Zubkova v. United States, No. 3:22-CV-171, 2023

WL 2468948, at *11 (S.D. Cal. Mar. 10, 2023); Lewis v. Westfield, 640

F. Supp. 3d 249, 253 (E.D.N.Y. 2022); Cienciva v. Brozowski, No. 3:20CV-2045, 2022 WL 2791752, at *9 (M.D. Pa. July 15, 2022) (“the presence of a warrant is a crucial difference in the Bivens new-context

analysis”); Style v. Mackey, No. 17-CV-1691, 2020 WL 3055319, at *4

(E.D.N.Y. June 8, 2020).

See, e.g., Bueno Diaz v. Mercurio, 442 F. Supp. 3d 701, 708 (S.D.N.Y.

2020); Lehal v. Cent. Falls Det. Facility Corp., No. 13-CV-3923, 2019

WL 1447261, at *11-12 (S.D.N.Y. Mar. 15, 2019).

See, e.g., Young v. City of Council Bluffs, 569 F. Supp. 3d 885, 894

(S.D. Iowa 2021); Robinson v. Heinze, 655 F. Supp. 3d 1276, 1281

(N.D. Ga. 2023); Challenger v. Bassolino, No. 18-CV-15240, 2023 WL

4287204, at *7 (D.N.J. June 30, 2023).

Bivens.” Bueno Diaz v. Mercurio, 442 F. Supp. 3d 701,

709 (S.D.N.Y. 2020). 9 Others take the opposite view. 10

Those conflicting results are untenable. The limits on

Bivens reflect separation-of-powers principles and the

legislature’s primacy in creating causes of action. Those

principles do not vary with the circuit in which the case

arises—or the judge to whom the case is assigned. Nor

should the critical mission of federal agents with national

responsibilities be subject to a patchwork of legal regimes.

It cannot be that Agent Henning, based out of the DEA’s

St. Louis Division, risks damages suits when he arrests

drug dealers in a park in East St. Louis, Illinois (in the

Seventh Circuit), but not when doing the very same thing

across the river in St. Louis, Missouri (in the Eighth

Circuit). Agents executing search warrants risk damages

suits when acting in Grand Junction, Colorado (in the

Tenth Circuit), but not Grand Rapids, Michigan (in the

Sixth Circuit).

Those different outcomes reflect a deeper conflict. The

courts of appeals disagree on how to conduct the newcontext inquiry and whether it requires judicial or legislative reasoning. See pp. 15-23, supra. Indeed, that the circuits disagree over such fundamental questions as the

relevance of the home and warrants in Fourth AmendAccord, e.g., Lehal v. Cent. Falls Det. Facility Corp., No. 13-CV3923, 2019 WL 1447261, at *12 (S.D.N.Y. Mar. 15, 2019) (holding “location of the arrest” makes “no ‘meaningful difference’ ”).

See, e.g., Rivera v. Samilo, 370 F. Supp. 3d 362, 369 (E.D.N.Y. 2019)

(claim “from the force allegedly applied in making a lawful street

arrest” is meaningfully different from “warrantless invasion of [the

plaintiff ’s] home” in Bivens); Campbell v. City of Yonkers, Nos. 19CV-2117, 19-CV-9444, 2023 WL 4867459, at *8 (S.D.N.Y. July 31, 2023)

(“Bivens involved a warrantless arrest and search of the plaintiff ’s

home, whereas this case involves an arrest made on a public street

with probable cause.”).

ment Bivens actions may signal that the new-context inquiry

is unworkable—and that Bivens should be overruled altogether. For that reason, too, review is warranted.

III. THIS CASE IS AN IDEAL VEHICLE

This case is an ideal vehicle. Both acknowledged circuit

conflicts are squarely and cleanly presented. At each

stage, Agent Henning urged that this case raised a new

Bivens context because Snowden was arrested outside the

home—in a location open to the public—and pursuant to a

warrant commanding his arrest. App., infra, 17a-18a, 26a27a. He consistently raised the availability of alternative

relief. Id. at 6a, 16a n.4, 27a-29a. The case was resolved

on the pleadings, leaving no factual disputes to impede this

Court’s review. Id at 4a, 21a. Snowden limited his appeal

to the dismissal of his Bivens claim against Agent

Henning. No other claims clutter the case. Id. at 6a. Nor

is this case burdened by additional factors that might

unduly narrow the issues presented for decision. Unlike

Hicks v. Ferreyra, No. 23-324, or Oliva v. Nivar, No. 201060, Snowden’s arrest did not take place on federal lands

or in a government facility—special areas that may raise

their own special considerations.

This Court’s resolution of the new-context issue would

likely be dispositive. Arrests in public locations, outside

the home, would present a “new Bivens context” in the

First, Fifth, Eighth, or Ninth Circuits. The warrant for

Snowden’s arrest would have done the same in the First,

Fifth, Sixth, or Ninth Circuits. And once a court determines the context is “new,” Bivens claims almost always

must fail. Courts may not imply Bivens remedies in any

“new contexts” if any “special factors” counsel “ ‘hesitation.’ ” Egbert, 596 U.S. at 491-493. The inquiry ultimately

reduces to “only one question: whether there is any

rational reason (even one) to think that Congress is better

suited to ‘weigh the costs and benefits of allowing a

damages action to proceed.’ ” Id. at 496. “If there is a

rational reason to think that the answer is ‘Congress’—as

it will be in most every case—no Bivens action may lie.”

Id. at 492 (citation omitted).

Congress is surely better suited to weigh the costs and

benefits of subjecting federal agents to damages suits for

their conduct in executing warrants in places that are open

to the public. When officers are called upon to make urgent, life-or-death decisions, the threat of personal

liability for making the wrong call risks “second-guessing,

hesitation, and potential confusion in situations of danger

where not only the officer’s life is in jeopardy but also

those of bystanders.” Int’l Ass’n of Chiefs of Police, Use

of Force Position Paper, https://www.theiacp.org/sites/

default/files/2019-05/Use%20of%20Force%20Task%20

Force%20Recommendations_Final%20Draft.pdf. The

wisdom of subjecting federal officers to personal liability

in such circumstances is precisely the sort of policy choice

that Congress is best suited to make.

CONCLUSION

The petition should be granted.

Respectfully submitted.

EUGENE A. SOKOLOFF

MOLOLAMKEN LLP

300 North LaSalle St.

Chicago, IL 60654

(312) 450-6700

JEFFREY A. LAMKEN

Counsel of Record

LUCAS M. WALKER

ROBERT Y. CHEN

KAYVON M. GHAYOUMI

MOLOLAMKEN LLP

The Watergate, Suite 500

600 New Hampshire Ave., N.W.

Washington, D.C. 20037

(202) 556-2000

jlamken@mololamken.com

Counsel for Petitioner

MARCH 2024

APPENDIX

APPENDIX – TABLE OF CONTENTS

Page

Appendix A – Opinion of the Court

of Appeals (June 27, 2023) .................................... 1a

Appendix B – Memorandum and Order

of the District Court (Mar. 3, 2021) ..................... 20a

Appendix C – Order of the Court of Appeals

Denying Rehearing (Nov. 3, 2023) ....................... 33a

(i)

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

————

NO. 21-1463

————

DONALD V. SNOWDEN,

Plaintiff-Appellant,

JEREMY HENNING,

Defendant-Appellee.

————

Appeal from the United States District Court

for the Southern District of Illinois.

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

————

Argued: November 2, 2021

Decided: June 27, 2023

————

Before SYKES, Chief Judge, and FLAUM and JACKSONAKIWUMI, Circuit Judges.

SYKES, Chief Judge. In Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S.

388 (1971), the Supreme Court recognized an implied damages remedy against federal officers for certain constitutional violations. Bivens involved a claim for damages

against federal narcotics agents for alleged Fourth

Amendment violations stemming from a warrantless

search, arrest, and unreasonable use of force against the

plaintiff in his home. The Court later extended the Bivens

remedy to two additional contexts: a claim against a

(1a)

member of Congress under the Fifth Amendment for

workplace sex discrimination, Davis v. Passman, 442 U.S.

228 (1979), and a claim against federal prison officials under the Eighth Amendment for failure to provide adequate

medical care, Carlson v. Green, 446 U.S. 14 (1980). Since

then, however, the Court has consistently refused to authorize new Bivens claims. Today, extending the Bivens

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

v. Abbasi, 582 U.S. 120, 135 (2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)).

In recent years, the Court has emphasized that creating new causes of action is the prerogative of Congress,

not the federal courts. To guard against encroachments

on legislative authority, the Court has fashioned a twostep framework for evaluating Bivens claims. The first

step considers whether the claim arises in a new context.

The context is new if the claim is different in a “meaningful

way” from an earlier Bivens claim authorized by the

Court. Id. at 139. If the context is not new, then the claim

may proceed. But if the context is new, then the analysis

proceeds to the second step, which asks whether “special

factors” counsel against authorizing a Bivens remedy. Id.

at 136.

This case requires us to survey the evolving Bivens

landscape. While staying at a hotel, Donald Snowden received a call from the front-desk clerk asking him to visit

the lobby to pay for the room. Special Agent Jeremy Henning with the Drug Enforcement Administration (“DEA”)

awaited Snowden’s arrival; a warrant had been issued for

his arrest. According to Snowden, Agent Henning pushed

him to the ground and—unprovoked—punched him several times in the face. Snowden suffered two black eyes

and a left orbital fracture.

Snowden sued Agent Henning, bringing a Fourth

Amendment Bivens claim for use of excessive force during

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

judge dismissed the Bivens claim, concluding that it presents a new context and that special factors counseled

against extending Bivens here. The judge dismissed the

state-law battery claim without prejudice, and Snowden

appealed.

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

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

the Supreme Court has strictly limited the reach of

Bivens, it has left the door open for at least some claims to

proceed—provided, however, that the claim is not meaningfully different from Bivens itself (or one of the other

two cases in which the Court recognized an implied remedy). A difference is “meaningful” when it involves a factual distinction or new legal issue that might alter the policy balance that initially justified the implied damages

remedies in the Bivens trilogy.

If the case involves new or different considerations

from an already-recognized Bivens action, then the inquiry moves to step two and separation-of-powers considerations are decisive. As the doctrine now stands, under

the “special factors” inquiry, a court cannot extend Bivens

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

to think that Congress is better suited to weigh the costs

and benefits of allowing a damages action to proceed.” Egbert v. Boule, 142 S. Ct. 1793, 1805 (2022) (internal quotation marks omitted). Few (if any) new claims will survive

this test. After all, creating new causes of action is primarily a legislative task.

Still, some claims may proceed under a straightforward

application of Bivens itself. Snowden’s case presents such

a claim. We therefore reverse.

I. BACKGROUND

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

accepting the well-pleaded allegations as true at this stage

of the litigation. Engel v. Buchan, 710 F.3d 698, 699-700

(7th Cir. 2013).

On September 12, 2019, Snowden was staying at the

Quality Inn in Carbondale, Illinois. He received a call

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

to pay for the room. The clerk knew that Agent Henning

was present to arrest Snowden. An arrest warrant had

been issued after a federal grand jury indicted Snowden

for methamphetamine distribution. 1

When Snowden arrived in the lobby, Agent Henning

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

ground. Snowden did not resist, yet Henning punched him

several times in the face. Snowden suffered two black eyes

and a fractured left eye socket during the arrest. 2

Several months later while in pretrial detention on the

methamphetamine charge, Snowden filed a pro se complaint against Agent Henning alleging a Fourth Amendment claim for “grossly excessive force” and a battery

claim under Illinois law. Snowden also named the DEA,

Quality Inn, and the front-desk clerk as defendants. The

claims against the DEA targeted the agency’s training and

supervision practices, and the claims against Quality Inn

Agent Henning attached the arrest warrant to his motion to dismiss.

We may take judicial notice of matters of public record when reviewing a complaint. Fosnight v. Jones, 41 F.4th 916, 922 (7th Cir. 2022).

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

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

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

proceeded to discovery on the merits.

and the front-desk clerk alleged that the hotel and its staff

obstructed justice.

Because Snowden filed a civil action against the government while in federal pretrial detention, the judge

screened the pleading under the Prison Litigation Reform

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

complaint to allege a Fourth Amendment Bivens claim

against Henning for use of excessive force during Snowden’s arrest. The judge allowed that claim to move forward, and he also exercised supplemental jurisdiction over

the state-law battery claim against Henning. He dismissed the claims against the DEA, Quality Inn, and the

front-desk clerk.

Agent Henning moved to dismiss the Bivens claim for

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

a new context and that special factors counseled against

extending Bivens. Henning also moved to convert the battery claim to one under the Federal Tort Claims Act

(“FTCA” or “the Act”) and substitute the United States as

the defendant. He explained that the FTCA provides the

exclusive remedy for injuries stemming from a federal employee’s violation of state law while acting within the scope

of his employment and that the United States is the only

proper defendant under the Act. The government certified that Agent Henning acted within the scope of his employment during the events in question.

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

argued that the constitutional claim, which was based on

allegations of unreasonable force during an arrest, was not

meaningfully different from Bivens. He did not explain

his opposition to the motion to convert the battery claim to

one under the FTCA and substitute the United States as

the defendant.

The judge dismissed the Bivens claim against Agent

Henning. He identified certain factual distinctions between Snowden’s case and Bivens, including the location

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

number of officers involved in the incident. He also identified what he characterized as a legal difference between

the Fourth Amendment rights at issue in Snowden’s case

and in Bivens. He described Bivens as “primarily” involving allegations concerning the “rights of privacy” implicated in an unlawful warrantless home entry, arrest, and

search, while Snowden alleged a violation of his “right to

be free from excessive force incident to an otherwise lawful arrest.” These differences led the judge to conclude

that Snowden’s case presents a new Bivens context. The

judge then held that special factors weighed against recognizing a Bivens claim here—namely, the availability of

an alternative remedy under the FTCA and the absence of

a damages remedy against federal officers in the FTCA or

PLRA.

Finally, the judge declined to substitute the United

States on the battery claim and convert the claim to one

under the FTCA. He explained that Snowden had pursued a Bivens claim against Agent Henning and should be

able to decide for himself if he would also like to bring an

FTCA claim against the United States as a substitute for

the state-law tort claim.

With the Bivens claim dismissed, no federal claim remained. The judge relinquished jurisdiction over the battery claim, dismissing it without prejudice.

II. DISCUSSION

Snowden limits his appeal to the dismissal of his Bivens

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

dismissing the other defendants at screening and

declining to convert the battery claim to one under the

FTCA—are not at issue here.

The practice of recognizing implied damages remedies

against federal officials for alleged constitutional violations had a short run at the Supreme Court. In its 1971

decision in Bivens, the Court authorized a damages remedy for a plain-tiff who alleged that federal narcotics officers violated his Fourth Amendment rights by entering and

searching his home without a warrant and arresting him

using unreason-able force. 403 U.S. at 389-90. Nearly a

decade later, the Court recognized an implied damages action against a member of Congress for workplace sex discrimination in violation of the Fifth Amendment. Davis,

442 U.S. at 230, 248-49. The following year, the Court extended Bivens again, approving a cause of action for damages against federal prison officials for failure to provide

adequate medical care in violation of the Eighth Amendment. Carlson, 446 U.S. at 16, 19.

Carlson marked the end of the line. Since 1980 the

Court has consistently rejected requests to recognize additional Bivens claims. See Hernández v. Mesa, 140 S. Ct.

735, 743 (2020) (citing Supreme Court cases after Carlson

that rejected Bivens claims). And in recent years the

Court has made explicit what had been implicit—“that expanding the Bivens remedy is now a ‘disfavored’ judicial

activity.” Abbasi, 582 U.S. at 135 (quoting Iqbal, 556 U.S.

at 675).

Bivens emerged at a time when courts freely implied

causes of action under federal statutes in the name of legislative purpose. The Court later rejected statutory remedies created through “judicial mandate,” reinforcing that

a cause of action must be supported by congressional intent ex-pressed clearly in statutory text. Id. at 133. The

Court likewise stressed that “it is a significant step under

separation-of-powers principles for a court to determine

that it has the authority, under the judicial power, to create and enforce a cause of action for damages against federal officials in order to remedy a constitutional violation.”

Id. The Court’s most recent Bivens case makes the point

more emphatically: “[C]reating a cause of action is a legislative endeavor.” Egbert, 142 S. Ct. at 1802.

But the Court has stopped short of overruling the

Bivens trilogy. Instead, it has fashioned a two-step framework to ensure that the judiciary does not further encroach on legislative authority under the banner of Bivens.

The first step asks whether the plaintiff ’s case presents “a

new Bivens context.” Id. at 1803 (quoting Abbasi, 582 U.S.

at 139). If it does not, then the plaintiff ’s claim may proceed. But if the claim arises in a new context, then the

court must consider whether “there are ‘special factors’ indicating that the Judiciary is at least arguably less

equipped than Congress to ‘weigh the costs and benefits

of allowing a damages action to proceed.’ ” Id. (quoting

Abbasi, 582 U.S. at 136). “If there is even a single ‘reason

to pause before applying Bivens in a new context,’ a court

may not recognize a Bivens remedy.” Id. (quoting Hernández, 140 S. Ct. at 743).

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

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

if “the case is different in a meaningful way from previous

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

U.S. at 139. The Court has identified some differences

that qualify as “meaningful”:

the rank of the officers involved; the constitutional

right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how

an officer should respond to the problem or emergency to be confronted; the statutory or other legal

mandate under which the officer was operating; the

risk of disruptive intrusion by the Judiciary into the

functioning of other branches; or the presence of potential special factors that previous Bivens cases did

not consider.

Id. at 140. A context may also be “new” when a “new category of defendants” is involved. Hernández, 140 S. Ct. at

743 (quotation marks omitted).

Several cases show these principles in practice. In Abbasi illegal immigrants who were detained in a special detention unit in the aftermath of the September 11 terrorist

attacks brought a damages claim against senior Department of Justice officials and prison wardens for harsh conditions in the unit. Seeking a remedy under Bivens, they

pointed to “significant parallels” with Carlson, which had

recognized a cause of action under the Eighth Amendment

for inadequate prison medical care. Abbasi, 582 U.S. at

147. The Court held that the case represented an extension of Bivens to a new context, noting that the claim implicated a different constitutional right (the Fifth Amendment vs. the Eighth Amendment), that alternative remedies might have been available, and that the PLRA suggested that Congress “chose not to extend the Carlson

damages remedy to cases involving other types of prisoner

mistreatment.” Id. at 148-49. These differences “easily

satisfied” the new-context test. Id. at 149.

The Court followed a similar path in Hernández, which

involved a cross-border shooting in which a Border Patrol

agent shot and killed a Mexican teenager who had been

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

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

relying on Bivens and Davis to support claims under the

Fourth and Fifth Amendments. The Court explained that

a Bivens claim may present a new context “even if it is

10a

based on the same constitutional provision as a claim in a

case in which a damages remedy was previously recognized.” Id. at 743. And “[a] cross-border shooting is by

definition an international incident”—a “world of difference” from the claims recognized in Bivens and Davis. Id.

at 744. That difference was significant: it raised foreignrelations and border-security concerns, which risked “disruptive intrusion by the Judiciary into the functioning of

other branches.” Id. (quoting Abbasi, 582 U.S. at 140).

The Court held that “multiple factors” counseled against

extending Bivens, all of which could be “condensed to one

concern—respect for the separation of powers.” Id. at

749.

Minneci v. Pollard, 565 U.S. 118 (2012), is another example. Prisoners sued employees of a privately operated

federal prison seeking damages for inadequate medical

care in violation of the Eighth Amendment. The plaintiffs

argued that Carlson governed and authorized their

Bivens claim. The Court responded that the defendants’

status as “personnel employed by a private firm” was a

“critical difference.” Id. at 126. A prisoner could not ordinarily sue a federal employee for damages in a state-law

tort action, but a state-law tort claim is an available remedy against an employee of a privately operated prison.

The Court added that an earlier case had foreclosed the

argument that a private prison-management firm should

be treated as a “federal agent.” Id. at 126-27 (citing Corr.

Servs. Corp. v. Malesko, 534 U.S. 61, 70 & n.4 (2001)). Because the context was new and the plaintiffs had an adequate remedy at state law, the Court declined to imply a

Bivens remedy. 3 Id. at 131.

It’s worth noting that the Court’s Bivens cases do not uniformly adhere to the two-step framework. Sometimes the Court declines to

11a

The distinctions that proved meaningful in Abbasi,

Hernández, and Minneci are not exclusive. Here Snowden raises a Fourth Amendment claim, and the threshold

question for us is whether his case is meaningfully different from Bivens itself—in the sense meant by the Court’s

“new context” caselaw. That a difference must be “meaningful” suggests that some degree of variation will not preclude a Bivens remedy. The Court has explicitly recognized this point: “Some differences, of course, will be so

trivial that they will not suffice to create a new Bivens context.” Abbasi, 582 U.S. at 149.

imply a Bivens remedy because Congress had already created a remedial scheme. See, e.g., Bush v. Lucas, 462 U.S. 367, 380-90 (1983).

Sometimes it declines to extend Bivens because of the sensitive domain involved, like the military. See, e.g., Chappell v. Wallace, 462

U.S. 296, 298-305 (1983). Still other cases decline to extend Bivens

because a new category of defendant was present. See, e.g., Corr.

Servs. Corp. v. Malesko, 534 U.S. 61, 69-74 (2001). Though these cases

do not formally follow the two-step framework, they resolve the

Bivens question in a functionally similar way.

Minneci is much the same. The Court began by considering

whether Carlson controlled because the plaintiffs brought a Bivens

claim based on prison conditions. Minneci v. Pollard, 565 U.S. 118,

126-27 (2012). Looking to its precedent, the Court considered whether

the case involved a new context. The Court then evaluated the adequacy of a state-law tort remedy, which is a special factor that might

counsel hesitation in extending the Bivens remedy. Minneci basically

maps onto the two-step framework.

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

address the “new context” inquiry because they do not need to—

where, for example, the case raises a claim under a different constitutional provision (like the First Amendment) or presents an obviously

distinct factual setting (like the military). These cases move straight

to the analysis of special factors to determine whether to authorize a

Bivens claim. See, e.g., Bush, 462 U.S. at 378-90; Chappell, 462 U.S.

at 298-305.

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We understand the Court’s evolving Bivens guidance to

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

the policy balance that initially justified the causes of action recognized in Bivens, Davis, and Carlson. If a case

involves facts or legal issues that would require reweighing the costs and benefits of a damages remedy against

federal officials, then the difference is “meaningful” because we risk further encroachment on the legislative

function rather than simply applying controlling Supreme

Court precedent. Viewed another way, we’re called on to

apply a familiar mode of judicial reasoning to determine if

the case before us fits within the Court’s still-valid—but

now quite limited—precedent, with special solicitude to

the separation-of-powers concerns identified by the Court.

This understanding accords with the cases we’ve just

described. In Abbasi a damages remedy like the one recognized in Carlson might not be appropriate because the

plaintiffs invoked a different constitutional right, had alternate remedies, and the PLRA suggested that Congress

might not have wanted to extend Carlson to other prisoner-mistreatment claims. These differences, though

“perhaps small,” suggested that the factual and legal

background had shifted enough from Carlson to warrant

restraint. Id. The same was true in Hernández. A crossborder shooting implicates foreign-relations concerns that

were not present in the everyday law-enforcement context

of Bivens. That difference readily indicated that a court

might weigh the propriety of an implied damages remedy

differently than in Bivens. Finally, the presence in Minneci of a new class of defendant, subject to a state-law tort

suit, signaled that the balance struck in Carlson did not

apply. The availability of an adequate state-law remedy

against a class of defendant not covered by the Court’s

Bivens trilogy could suggest that the differences are

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sufficiently meaningful to require careful consideration of

separation-of-powers factors that counsel against a Bivens

action.

Note that we speak not in absolute terms but in

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

watchword is caution.” Hernández, 140 S. Ct. at 742. If a

court finds differences in a case that could upset a

straightforward application of Bivens or Davis or Carlson, then the case presents a new Bivens context and the

analysis moves to the “special factors” inquiry. This understanding of the new-context requirement harmonizes

the two steps in the Court’s Bivens framework. In the

first step we identify claims that entail “meaningful” differences from the claims at issue in the Bivens trilogy—

i.e., factual distinctions and legal issues that might alter

the cost–benefit balance that justified an implied damages

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

attention to separation-of-powers concerns, considering

whether “special factors” indicate that Congress is better

equipped in the specific context to assess the costs and

benefits of a damages remedy. An approach that sorts

cases in the heartland of Bivens from those that might introduce separation-of-powers concerns makes sense because of the deference owed to Congress, which “is best

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

monetary and other liabilities should be imposed upon individual officers and employees of the Federal Government’ based on constitutional torts.” Id. (quoting Abbasi,

582 U.S. at 134).

The Fourth Circuit has distilled the new-context inquiry in much the same way. The court explained: “[A]

new context may arise if even one distinguishing fact has

the potential to implicate separation-of-powers considerations.” Tate v. Harmon, 54 F.4th 839, 846 (4th Cir. 2022)

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(second emphasis added). And recent Bivens cases from

other circuits also reflect this approach, finding a new context when there are separation-of-powers considerations

different than those already present in the Bivens trilogy.

See Bulger v. Hurwitz, 62 F.4th 127, 137-38 (4th Cir. 2023)

(concluding that the Bivens claim arose in a new context

because the plaintiff ’s claim implicated the Bureau of Prisons’ “organizational policies, administrative decisions, and

economic concerns inextricably tied to inmate transfer and

placement determinations”); Dyer v. Smith, 56 F.4th 271,

277-78 (4th Cir. 2022) (new context because TSA officers

operate under a different legal mandate); Tun-Cos v. Perrotte, 922 F.3d 514, 523-25 (4th Cir. 2019) (new context because immigration enforcement concerns noncitizens, because of “broad policy concerns,” and because ICE agents

are a “new category of defendants”); Mejia v. Miller, 61

F.4th 663, 668-69 (9th Cir. 2023) (new context because

“[t]he entire incident occurred on public lands managed by

BLM and the National Park Service, a place where [the

plaintiff] had no expectation of privacy”); K.O. ex rel. E.O.

v. Sessions, No. 20-5255, 2022 WL 3023645, at *3-4 (D.C.

Cir. July 29, 2022) (per curiam) (new context because the

“case arises in the context of immigration detention” and

because the claims “implicate new defendants,” including

“various high-level officials”).

At the other end of the spectrum, a recent Fourth Circuit decision recognized that a Bivens claim remains viable

if it doesn’t present concerns that might caution against

the application of a preexisting damages remedy. Hicks v.

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

that the Bivens claim did not present a new context because it involved “not an extension of Bivens so much as a

replay of the same principles of constitutional criminal law

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prohibiting the unjustified, warrantless seizure of a person” (internal quotation marks omitted)).

Of course, just last term the Supreme Court emphasized just how narrow the path is for a Bivens claim to proceed. In Egbert the Court suggested that the two-step

framework boils down to one question: “whether there is

any reason to think that Congress might be better

equipped to create a damages remedy.” 142 S. Ct. at 1803.

Writing on a blank slate, we might say that it is never appropriate for a federal court to create an implied cause of

action for damages under the Constitution. See Abbasi,

582 U.S. at 134 (“[I]t is possible that the analysis in the

Court’s three Bivens cases might have been different if

they were decided today.”). But we operate within the current state of the doctrine, and the Court has said that its

recent decisions are “not intended to cast doubt on the

continued force, or even the necessity, of Bivens in the

search-and-seizure context in which it arose.” Id. Indeed,

the Court has explained that “[t]he settled law of Bivens

in th[e] common and recurrent sphere of law enforcement,

and the undoubted reliance upon it as a fixed principle in

the law, are powerful reasons to retain it in that sphere.”

Id. Because Bivens remains good law, at least for now, we

continue to apply it.

On these understandings, we can identify no meaningful difference between Snowden’s case and Bivens to suggest that he should not be able to pursue this excessiveforce claim. Agent Henning operated under the same legal mandate as the officers in Bivens—the enforcement of

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

federal narcotics officer as the defendant-officers in

Bivens. Like Webster Bivens, Snowden seeks damages

for violation of his rights under the Fourth Amendment;

more specifically, both plaintiffs alleged that officers used

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unreasonable force in an arrest. And the legal landscape

of excessive-force claims is well settled, with decades of

circuit precedent applying the Supreme Court’s test announced in Graham v. Connor, 490 U.S. 386 (1989). See,

e.g., Doxtator v. O’Brien, 39 F.4th 852, 860-62 (7th Cir.

2022); Brownell v. Figel, 950 F.2d 1285, 1292-93 (7th Cir.

1991). Officers have clear guidance on the level of force

that is reasonable when arresting a suspect who does not

resist. See Gonzalez v. City of Elgin, 578 F.3d 526, 539

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

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

totality of circumstances at the time of the arrest, the officer used greater force than was reasonably necessary to

make the arrest.” (internal quotation marks omitted));

Abbott v. Sangamon County, 705 F.3d 706, 732 (7th Cir.

2013) (concluding that it had been “well-established in this

circuit that police officers could not use significant force on

nonresisting or passively resisting suspects”).

Nor does allowing a Bivens claim here risk a “disruptive intrusion” into the “functioning of other branches.” At

the very least, the intrusion is no more disruptive than

what Bivens itself already approved. Finally, Snowden’s

claim implicates no other contextual factor—whether a national security issue (Hernández), a different constitutional right coupled with alternative remedies (Abbasi), or

a different class of defendant (Minneci)—that might lead

us to move to the second step of the Bivens inquiry. 4 In

Agent Henning discusses other factors only when he addresses the

second step of the Bivens analysis, but the factors he identifies also do

not suggest that Snowden’s claim arises in a new context. He points

to the availability of a remedy under the FTCA. However, the statute

does not displace a Bivens claim in the narrow cases where it is available. In Carlson the Court concluded that “victims of the kind of intentional wrongdoing alleged in this complaint shall have an action

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short, consideration of the Abbasi factors points to the

same conclusion: We do not risk arrogating a legislative

function by allowing Snowden’s Bivens claim to proceed.

Resisting this conclusion, Agent Henning argues that

Bivens rests on “the right to be free of unreasonable warrant-less search and detention in one’s own home and arrest in the absence of probable cause.” He describes

Snowden’s claim as rooted in “the right to be free of excessive force in the context of a lawful arrest in a public place

pursuant to a warrant issued following a finding of probable cause.” This argument overlooks that the claim in

Bivens specifically included an allegation that “unreasonable force was employed in making the arrest.” Bivens,

403 U.S. at 389.

Agent Henning also points to narrow factual differences to argue that Snowden’s claim presents a new context dis-tinct from Bivens. Drawing on the district judge’s

reasoning, he highlights that the alleged Fourth Amendment violations took place in different locations (a hotel

lobby here, a home in Bivens); that he had a warrant (the

officers in Bivens did not); and that he was the only officer

involved (six officers participated in the arrest at issue in

under FTCA against the United States as well as a Bivens action

against the individual officials alleged to have infringed their constitutional rights.” Carlson v. Green, 446 U.S. 14, 20 (1980) (emphasis

added).

More recently the Court recognized that “Congress made clear

that it was not attempting to abrogate Bivens,” Hernández v. Mesa,

140 S. Ct. 735, 748 n.9 (2020), because it excepted “a civil action . . .

brought for a violation of the Constitution of the United States” from

the FTCA’s exclusivity provision, 28 U.S.C. § 2679(b)(2)(A). The provision was “not a license to create a new Bivens remedy in a context

[the Court] ha[s] never before addressed” but “simply left Bivens

where it found it.” Hernández, 140 S. Ct. at 748 n.9. This case does

not present a new Bivens context, so the Act does not come into play.

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Bivens). These distinctions are not sufficient to affect the

Bivens inquiry. Hotel or home, warrant or no warrant—

the claims here and in Bivens stem from run-of-the-mill

allegations of excessive force during an arrest. The number of officers present might prove relevant to whether the

force applied was reasonable, but as a separation-of-powers matter, the presence of one officer rather than six is

not meaningful. This case does not involve a different

class of defendant—a new context that indeed might require more careful consideration. See, e.g., Minneci, 565

U.S. at 126-31; FDIC v. Meyer, 510 U.S. 471, 484-86 (1994).

In short, the factual distinctions Henning emphasizes are

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

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

Finally, Agent Henning seeks support in Oliva v.

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

Bivens claim based on an allegation of excessive force that

occurred at a security checkpoint in a Veterans Affairs

hospital, and the distinctions there were meaningful. Id.

at 440-41. The case involved a different type of officer with

a different law-enforcement mandate: a VA police officer

enforcing hospital safety (in contrast to narcotics officers

carrying out a drug investigation). The seizure itself occurred in a government facility, a space that is meaningfully different than a private home or building for the purpose of a judicially implied damages remedy. The Fifth

Circuit concluded that these distinctions mattered. The

context therefore was new, and the court held that special

factors warranted restraint. Id. at 443-44. The threat of a

damages award against VA security officers could cause

more lax enforcement of safety protocols in a government

building. In other words, the circumstances in Oliva implicated the kind of policy balancing better left to Congress. Snowden’s Bivens claim raises no such distinctions.

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In the end, although the Supreme Court has narrowly

cabined the Bivens remedy and consistently refused to

recognize new claims, we cannot decline to apply “the settled law of Bivens” unless Snowden’s case is meaningfully

different—i.e., different in a way that implicates the separation-of-powers calculus. Abbasi, 582 U.S. at 134, 139-40.

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

reexamined; indeed, two Justices have proposed that it be

abandoned. Egbert, 142 S. Ct. at 1809-10 (Gorsuch, J., concurring); Hernández, 140 S. Ct. at 750-53 (Thomas, J.,

concurring). But our role is to apply the Court’s caselaw

as it stands now. Because Snowden’s claim is not meaningfully different than Bivens itself, it may proceed.

REVERSED

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

————

NO. 19-CV-01322-JPG

————

DONALD V. SNOWDEN,

Plaintiff,

JEREMY HENNING,

Defendant.

————

MEMORANDUM AND ORDER

————

March 3, 2021

————

GILBERT, District Judge:

This matter is now before the Court for a decision on

Defendant Jeremy Henning’s Motion to Dismiss for Failure to State a Claim (Doc. 24) and Motion to Substitute

Party (Doc. 25). Plaintiff Donald Snowden filed this pro se

action pursuant to 28 U.S.C. §1331 and Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), claiming that

he was subjected to the unauthorized use of force incident

to his arrest without a warrant by Special Agent Jeremy

Henning (“Agent Henning”) of the Drug Enforcement Administration on September 12, 2019. (Doc. 1). He seeks

money damages. (Id. at 7). The Court screened this matter pursuant to 28 U.S.C. §1915A and allowed Plaintiff to

proceed with an excessive force claim (Count 1) pursuant

(20a)

21a

to Bivens and an Illinois battery claim (Count 4) pursuant

to 28 U.S.C. §1367(a). (Doc. 15).

In lieu of an answer, Agent Henning filed a Motion to

Dismiss Bivens Claim in Count 1 (Doc. 24) and a Motion

to Substitute the United States as Defendant in Count 4

and convert the action to one brought pursuant to the Federal Tort Claims Act (“FTCA”) (Doc. 25). Plaintiff opposes both motions on the ground that he specifically intended to file a Bivens action, not an FTCA claim, and he

wishes to proceed with his damages claim against Agent

Henning under Bivens. The Motion to Dismiss is

GRANTED, and the Motion to Substitute is DENIED.

BACKGROUND

Plaintiff filed this action during his federal pretrial detention on a methamphetamine distribution charge. See

United States v. Snowden, No. 19-cv-40081-JPG (S.D. Ill.

2019). In the Complaint, Plaintiff alleges that he was subjected to the unauthorized use of force incident to his arrest without a warrant on September 12, 2019. (Doc. 1, pp.

6, 9). As Plaintiff stood at the front desk of the Quality Inn

located in Carbondale, Illinois, Agent Henning approached him and repeatedly punched him in the face, injuring his left eye socket. (Id. at 6, 9-10). Plaintiff claims

that the force was unauthorized and unprovoked. (Id.).

The Court screened the Complaint pursuant to Section

1915A on March 9, 2020. (Doc. 15). Plaintiff was allowed

to proceed with a claim against Agent Henning for the unauthorized use of force during his arrest without a warrant

on September 12, 2019, in violation of his rights under the

Fourth and/or Fourteenth Amendments 1 and pursuant to

The Court’s reference to the Fourteenth Amendment Due Process

Clause in the Screening Order was in error. The Fourteenth Amendment Due Process Clause does not apply to federal actors, but the

22a

Bivens. (Count 1). He was also allowed to proceed with a

supplemental state law battery claim. (Count 4).

On July 8, 2020, Agent Henning filed a Motion to Dismiss Count 1. (Doc. 24). Along with the Motion, Agent

Henning filed a copy of the arrest warrant issued after a

finding of probable cause on September 10, 2019—two

days prior to Plaintiff ’s arrest. (Docs. 24-1 and 24-2). Citing the United States Supreme Court’s decision in Ziglar

v. Abbasi, __ U.S. ___, 137 S. Ct. 1843 (2017), Agent Henning argues that Count 1 presents a new context and an

unauthorized expansion of the remedy contemplated in

Bivens. (Id.). He asks the Court to dismiss Count 1 pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Id.). He also filed a Motion to Substitute the United

States as a defendant in Count 4 pursuant to the Westfall

Act and allow the claim to proceed under the Federal Tort

Claims Act. (Doc. 25).

On August 11, 2020, Plaintiff filed a Response in Opposition to Defendant’s Motion to Dismiss for Failure to

State a Claim on Count 1. (Doc. 29). Plaintiff asserts that

he intended to pursue relief against Agent Henning under

Bivens and not against the United States under the Federal Tort Claims Act. (Id.). Plaintiff argues that his claim

presents no new Bivens context and no special factors

weigh against an implied damages remedy here. (Id.).

Fifth Amendment Due Process Clause does. This is a distinction that

makes no difference here. See Bowles v. Willingham, 321 U.S. 504

(1994) (noting that the “restraints imposed on the national government . . . by the Fifth Amendment are no greater than those imposed

on the States by the Fourteenth.”). The Court simply notes that

Count 1 involves a claim against Agent Henning under the Fourth or

Fifth Amendment, rather than the Fourth or Fourteenth Amendment.

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Moreover, the FTCA provides an inadequate remedy.

(Id.).

DISCUSSION

I. COUNT 1

The purpose of a motion to dismiss filed pursuant to

Rule 12(b)(6) of the Federal Rules of Civil Procedure

(“Rule 12(b)(6)”) is to decide the adequacy of the complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th

Cir. 1990). In order to survive a Rule 12(b)(6) motion, the

complaint must allege enough factual information to “state

a claim to relief that is plausible on its face” and “raise a

right to relief above the speculative level.” Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007). A claim is

plausible when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009). A Plaintiff need not

plead detailed factual allegations, but he or she must provide “more than labels and conclusions, and a formulaic

recitation of the elements.” Twombly, 550 U.S. at 570.

When considering a motion to dismiss filed pursuant to

Rule 12(b)(6), the Court must accept well-pleaded facts as

true and draw all possible inferences in favor of the plaintiff. McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d

873, 879 (7th Cir. 2012). The Court must “consider the

complaint in its entirety, as well as other sources courts

ordinarily examine when ruling on Rule 12(b)(6) motions

to dismiss, in particular, documents incorporated into the

complaint by reference, and matters of which a court may

take judicial notice.” Tellabs, Inc. v. Markor Issues &

Rights, Ltd., 551 U.S. 308, 322 (2007). Ordinarily, to the

extent a motion filed under Rule 12(b)(6) presents matters

outside of the pleadings which the Court opts to consider,

the Court must treat the motion as one for summary

24a

judgment pursuant to Rule 12(d) and 56 of the Federal

Rules of Civil Procedure. However, the Court may take

judicial notice of matters that are in the public record

when deciding a motion to dismiss. Palay v. United

States, 349 F.3d 418, 425 n.5 (7th Cir. 2003).

In Bivens, the United States Supreme Court recognized an implied damages action against federal officers

who violated the Fourth Amendment prohibition against

unreasonable searches and seizures. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Bivens alleged

that federal drug agents entered his home and arrested

him for federal drug violations apparently without probable cause or a warrant. Id. at 389-90, n.1. They cuffed him

within view of his wife and children, threatened to arrest

his family, and searched his apartment before interrogating, booking, and visually searching him. Id. at 389. When

Bivens sued, the trial court dismissed the case for failure

to state a claim, and the court of appeals affirmed. Id. at

390.

The Supreme Court rejected the argument that his

remedy for this misconduct should be limited to a state

court damages claim. Id. The Court instead concluded

that “the Fourth Amendment operates as a limitation

upon the exercise of federal power regardless of whether

the State in whose jurisdiction that power is exercised

would prohibit or penalize the identical act if engaged in

by a private citizen.” Id. at 392. The Court went on to find

that Bivens stated a cause of action under the Fourth

Amendment and that he was “entitled to recover money

damages for injuries he . . . suffered as a result of the

Agent’s violation of the Amendment.” Id. at 397.

In the decade that followed, the Supreme Court recognized an implied damages remedy under the Constitution

only twice—in a Fifth Amendment gender discrimination

25a

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

Eighth Amendment Cruel and Unusual Punishments

Clause case, Carlson v. Green, 446 U.S. 14 (1980). At the

time the Court decided Bivens, Davis, and Carlson, the

Court implied causes of action to provide remedies that

were not explicitly available in statutory texts “as a routine matter.” Ziglar v. Abbasi, __ U.S. ___, 137 S. Ct. 1843,

1855 (2017).

In the past three decades, however, the Court has taken

a more cautious approach. Ashcroft v. Iqbal, 556 U.S. at

675. In Abbasi, the Supreme Court warned that “it is a

significant step under separation-of-powers principles for

a court to determine that it has authority, under the judicial power, to create and enforce a cause of action for damages against federal officials in order to remedy a constitutional violation.” Abbasi, 137 S. Ct. at 1856. While recognizing that Bivens remains good law, the Abbasi Court

made clear that the Supreme Court has consistently declined to extend Bivens “to any new context or new category of defendants,” and further expansion of the Bivens

remedy is “disfavored” judicial activity. Id. at 1857 (citing

Iqbal, 556 U.S. at 675). When asked to extend Bivens,

courts should first consider whether the request involves

a claim that arises in a new context or involves a new category of defendants and then proceed to ask whether any

special factors counsel hesitation in granting the extension

absent affirmative action by Congress. Id. at 1857. Defendant’s motion to dismiss thus presents the question of

whether extension of the Bivens remedy to a claim of excessive force against a federal agent who used force while

executing an arrest warrant issued after a finding of probable cause presents a new Bivens context or involves a new

category of defendants and, if so, whether special factors

counsel hesitation about granting the extension. For the

26a

reasons discussed herein, the Court finds that Count 1

does present a new context, and special factors counsel

against expansion of the Bivens remedy here.

A. New Context

A claim arises in a new Bivens context where a case differs in a meaningful way from a previous Bivens case decided by the Court. Abbasi, 137 S. Ct. at 1859-60. Differences may include the constitutional right at issue, the

rank of the officer involved, the extent of judicial guidance

for the official conduct, the risk of disruptive intrusion by

the Judiciary into the functioning of other government

branches, or the other special factors not considered in

previous Bivens cases. Id. This list is not exhaustive. Id.

Of the three Supreme Court cases recognizing an implied damages remedy under the Constitution (i.e.,

Bivens, Davis, and Carlson), Bivens has the most overlap

with the instant case. Although similar, the underlying

facts of the two cases are different. Bivens involved six

federal drug agents entering a home without a warrant,

arresting the plaintiff in the presence of his family, and

visually searching him. The instant case involves a single

federal drug agent’s arrest of the plaintiff in public pursuant to a warrant issued two days earlier upon a finding of

probable cause. (See Doc. 24-1 and 24-2).

The constitutional right at issue in the cases is also different. Abbasi, 137 S. Ct. at 1859- 60. While Bivens tested

the constitutionality of the home entry, arrest, and search

without a warrant, the instant matter tests the amount of

force that can reasonably be used during an arrest.

Bivens, 403 U.S. at 389-90. In Bivens, the rights at issue

were “primarily rights of privacy.” Id. Here, the right at

issue is primarily the right to be free from excessive force

incident to an otherwise lawful arrest. (See Docs. 24-1 and

Doc. 24-2).

27a

In addition, the officers were acting pursuant to different mandates. In Bivens, the officers lacked a warrant

and probable cause to make the arrest. Bivens, 403 U.S.

at 389-90, n.1. In the instant case, the officer acted pursuant to a warrant issued after a finding of probable cause.

(Doc. 24-1 and 24-2). The officers’ legal mandate in Bivens

thus differed from the officer’s legal mandate here. When

determining whether a claim presents a new context, the

Abbasi Court instructs lower courts to read Bivens narrowly. Id. at 1856-57. Consistent with this instruction, the

Court finds that the differences noted here are meaningful, and Count 1 presents a new Bivens context.

B. Special Factors

When determining whether special factors counsel hesitation in expansion of an implied damages remedy here,

the analysis boils down to whether Congress or the courts

should decide to authorize a damages suit. Abbasi, 137 S.

Ct. at 1857 (citing Bush v. Lucas, 462 U.S. 367 (1983)).

Courts must refrain from creating a remedy where there

are reasons to think that Congress might question the necessity of a damages remedy as part of the system for correcting a wrong and enforcing the law. Abbasi, 137 S. Ct.

at 1858. Therefore, when presented with the question of

whether Congress or the Court should decide to authorize

a damages suit, the answer is usually Congress. Id.

Defendant argues that the availability of the Federal

Tort Claims Act as a potential alternative remedy militates against expansion of a Bivens remedy here. The

FTCA waives the Government’s sovereign immunity from

tort suits, but it excepts from the waiver certain intentional torts. 28 U.S.C. §2680(h). However, Section 2680(h)

contains a proviso that extends the waiver of sovereign immunity to claims for six intentional torts, including assault

and battery, that are based on the “acts or omissions” of

28a

an “investigative or law enforcement officer,” i.e., a federal

officer “who is empowered by law to execute searches, to

seize evidence, or to make arrests.” Id. This proviso applies to law enforcement officers’ acts or omissions that

arise within the scope of their employment, regardless of

whether the officers are engaged in investigative or law

enforcement activity or are executing a search, seizing evidence, or making an arrest.” Millbrook v. United States,

569 U.S. 50 (2013). Although the FTCA does not authorize

suit against the United States for the constitutional torts

of its employees, the availability of this statutory remedy

for the underlying conduct at issue provides an alternative

avenue to relief. See 28 U.S.C. §2679(b)(2)(A); Schweiker

v. Chilicky, 487 U.S. 412, 425, 427 (1988).

Plaintiff argues that the Supreme Court squarely rejected this position in Carlson when it found that the

FTCA provides an insufficient remedy for constitutional

violations by individual officers. Correctional Servs. Corp.

v. Malesko, 534 U.S. 61, 68 (2001) (citing Carlson, 446 U.S.

at 21) (“Because the Bivens remedy is recoverable against

individuals, it is a more effective deterrent than the FTCA

remedy.”). Plaintiff disregards the thirty years of precedent that has since limited expansion of the Bivens remedy where no other remedy was available. In Malesko, for

example, the Supreme Court observed that it has since

“rejected the claim that a Bivens remedy should be implied simply for want of any other means for challenging a

constitutional deprivation in federal court. . . . So long as

the plaintiff had an avenue for some redress, bedrock principles of separation of powers foreclosed judicial imposition of a new substantive liability.” Malesko, 534 U.S. at

69. More recently, the Supreme Court observed that alternative remedies “need not be perfectly congruent” to

preclude a Bivens remedy. Minneci v. Pollard, 556 U.S.

29a

118, 129 (2012). Since then, the Abbasi Court has pointed

out that “when alternative methods of relief are available,

a Bivens remedy usually is not.” Abbasi, 137 S. Ct. at 1863.

And just last week, the Supreme Court observed that the

FTCA “opened a new path to relief (suits against the

United States) while narrowing the earlier one (suits

against employees).” Brownback v. King, __ S. Ct. ___,

2021 WL 726222 (Feb. 25, 2021).

The existence of the FTCA as a potential remedy counsels hesitation in recognizing an implied damages remedy

for the constitutional violation alleged in this case. Legislative action suggests that Congress did not want a damages remedy is a factor counseling hesitation. Abbasi, 137

S. Ct. at 1865. By enacting the law enforcement proviso,

Congress signaled that it does not want a damages remedy

against individual federal agents. Congress also did not

provide a “standalone” damages remedy against federal

officers when it enacted the Prison Litigation Reform Act.

Id. In light of the Supreme Court’s expressed caution

about extending the Bivens remedy, this context must be

regarded as new, and special factors counsel hesitation in

extending the Bivens remedy to include Plaintiff ’s claim.

Accordingly, Defendant’s Motion to Dismiss Pursuant to

Rule 12(b)(6) or, alternatively Rule 12(d) and 56 (Doc. 24),

shall be granted, and Count 1 shall be dismissed.

II. COUNT 4

The only other claim remaining in this action is an Illinois battery claim against Agent Henning. (Doc. 15). Generally speaking “when a court has dismissed all the federal

claims in a lawsuit before trial, it should relinquish jurisdiction over supplemental state law claims rather than resolve them on the merits.” 28 U.S.C. §1367(c)(3); Cortezano v. Salin Bank & Trust Co., 680 F.3d 936, 941 (7th

Cir. 2012); Wright v. Associated Ins. Cos. Inc., 29 F.3d

30a

1244, 1252 (7th Cir. 1994) (“[W]hen all federal-law claims

are dismissed before trial, the pendant claims should be

left to the state courts.”). There are exceptions to this general rule. For example, the Court may retain jurisdiction

when: “(1) the statute of limitations has run on the pendant

claim, precluding the filing of a separate suit in state court;

(2) substantial judicial resources have already been committed, so that sending the case to another court will cause

a substantial duplication of effort; or (3) it is absolutely

clear how the pendant claims can be decided.” Sharp Elecs. Corp. v. Metro Life Ins. Co., 578 F.3d 505, 514-15 (7th

Cir. 2009) (quoting Wright, 29 F.3d at 1251) (internal quotations omitted). None of these exceptions warrants retention of jurisdiction over the supplemental claim, as the

battery claim is not time-barred under the applicable twoyear statute of limitations, the case remains in its infancy,

and it is not clear how the claim should be decided. Accordingly, the Court shall relinquish jurisdiction over the

battery claim in Count 4, and this claim shall be dismissed

without prejudice. Plaintiff may pursue his battery claim

in state court, if he wishes to do so.

The Court declines to substitute the United States in

place of Agent Henning and convert this matter to an action brought pursuant to the FTCA. (Doc. 25). Plaintiff

chose to bring this action pursuant to 28 U.S.C. §1331 and

Bivens—not the FTCA. (See Doc. 1, p. 1). In his Response, Plaintiff states that he intended to pursue a claim

against Agent Henning and not the United States. (Doc.

27). Litigants are free to bring separate suits against joint

tortfeasors. Sterling v. United States, 85 F.3d 1225, 1228

(7th Cir. 1996). Plaintiff has made clear that he does not

wish to name the United States in this lawsuit or bring an

FTCA claim against the United States here. There may

be many good reasons for this. For one thing, the FTCA

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forbids a victim to file suit against the United States until

first presenting an administrative claim to the appropriate

federal agency in an attempt to resolve it without litigation. 28 U.S.C. §2672. Failure to do so can cost the plaintiff the opportunity to recover damages. McNeil v. United

States, 508 U.S. 106 (1993). Plaintiff is in the best position

to decide whether and when to bring an FTCA claim

against the United States. Accordingly, the Motion for

Substitution (Doc. 25) shall be DENIED.

DISPOSITION

IT IS ORDERED that Defendant Henning’s Motion to

Dismiss Count 1 Pursuant to Rule 12(b)(6) or, Alternatively Rule 12(d) and 56 (Doc. 24), is GRANTED, and Defendant Henning’s Motion to Substitute Party in Count 4

and Dismiss Defendant Henning (Doc. 25) is DENIED.

IT IS ORDERED that COUNT 1 is DISMISSED with

prejudice against Defendant HENNING because the

claim presents a new context and an unauthorized expansion of the implied damages remedy under Bivens;

COUNT 4 is DISMISSED without prejudice against Defendant HENNING because the Court relinquishes jurisdiction over the supplemental state law battery claim pursuant to 28 U.S.C. §1367(c)(3).

This action is DISMISSED with prejudice for failure to

state a claim upon which relief may be granted under 28

U.S.C. §1331 and Bivens.

If Plaintiff wishes to appeal this Order, he may file a

notice of appeal with this Court within thirty days of the

entry of judgment. FED. R. APP. 4(a)(1)(A). If Plaintiff

does choose to appeal, he will be liable for the $505.00 appellate filing fee irrespective of the outcome of the appeal.

See FED. R. APP. 3(e); 28 U.S.C. §1915(e)(2); Ammons v.

Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008). He must

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list each of the issues he intends to appeal in the notice of

appeal. A proper and timely motion filed pursuant to Federal Rule of Civil Procedure 59(e) may toll the 30-day appeal deadline. FED. R. APP. P. 4(a)(4). A Rule 59(e) motion

must be filed no more than twenty-eight (28) days after

the entry of judgment, and this 28-day deadline cannot be

extended.

The Clerk’s Office is DIRECTED to close this case and

enter judgment accordingly.

IT IS SO ORDERED.

DATED: March 3, 2021

s/ J. Phil Gilbert

J. PHIL GILBERT

United States

District Judge

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

————

NO. 21-1463

————

DONALD V. SNOWDEN,

Plaintiff,

JEREMY HENNING,

Defendants.

————

On Appeal from the United States District Court

for the Southern District of Illinois.

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

————

ORDER

————

November 3, 2023

————

Before DIANE S. SYKES, Chief Judge, JOEL M. FLAUM,

Circuit Judge, CANDACE JACKSON-AKIWUMI, Circuit

Judge

————

On consideration of the petition for rehearing and for

rehearing en banc, no judge in active service requested a

vote on the petition for rehearing en banc, and all judges

on the original panel voted to deny rehearing. It is therefore ordered that the petition for rehearing en banc is DENIED.

(33a)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.