Amicus Curiae Brief — Jeremy Henning, Petitioner v. Donald V. Snowden

No. 23-976

IN THE

Supreme Court of the United States

————

JEREMY HENNING,

Petitioner,

v.

DONALD V. SNOWDEN,

Respondent.

————

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

————

BRIEF OF AMICUS CURIAE FEDERAL LAW

ENFORCEMENT OFFICERS ASSOCIATION

(FLEOA) IN SUPPORT OF PETITIONER

————

DEBRA L. ROTH

Counsel of Record

CHRISTOPHER J. KEEVEN

SHAW BRANSFORD & ROTH P.C.

1101 Connecticut Avenue, NW

Ste 1000

Washington, D.C. 20036

(202) 463-8400

droth@shawbransford.com

Counsel for Amicus Curiae

April 5, 2024

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

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

ii

INTERESTS OF THE AMICUS CURIAE..........

1

SUMMARY OF THE ARGUMENT ....................

3

ARGUMENT ........................................................

4

I. FOURTH AMENDMENT RIGHTS VARY

IN THE HOME AND IN PUBLIC ...........

5

A. Additional Legal Protections in

Private Homes .....................................

6

B. Differences Between Law Enforcement

Activity in Public and Private .............

8

1. Limited Preparation and Lack of

Control ............................................

9

2. Heightened Risks to the Officer

and the Public ................................

11

II. SEARCHES AND SEIZURES WITH A

WARRANT ARE MEANINGFULLY

DIFFERENT THAN WITHOUT A

WARRANT ................................................

13

III. UNCERTAINTY

OF

OFFICER

PERSONAL LIABILITY JEOPARDIZES

PUBLIC SAFETY .......................................

15

CONCLUSION ....................................................

18

(i)

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Ahmed v. Weyker,

984 F.3d 564 (8th Cir. 2020) ..................... 16, 17

Bivens v. Six Unknown Named Agents

of the Fed. Bureau of Narcotics,

403 U.S. 388 (1971) ....................... 2-5, 13, 15-17

Davis v. United States,

564 U.S. 229 (2011) ...................................

8

Egbert v. Boule,

596 U.S. 482 (2022) ................................. 3, 4, 15

Florida v. White,

526 U.S. 599 (1999) ...................................

5

Georgia v. Randolph,

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

7

Graham v. Connor,

490 U.S. 386 (1989) ...................................

9

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ...................................

15

Hernandez v. Mesa,

589 U.S. 93 (2020) .....................................

4, 5

Hicks v. Ferreyra,

64 F.4th 156 (4th Cir. 2023) .....................

16

Lange v. California,

141 S. Ct. 2011 (2021) ............................... 5, 7, 8

Logsdon v. U.S. Marshal Serv.,

91 F.4th 1352 (10th Cir. 2024) .................

16

Mejia v. Miller,

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

16

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Miller v. United States,

357 U.S. 301 (1958) ...................................

7

New York v. Harris,

495 U.S. 114 (1990) ...................................

7

Nixon v. Fitzgerald,

457 U.S. 731 (1982) ...................................

15

Olivia v. Nivar,

973 F.3d 438 (5th Cir. 2020) .....................

16

Payton v. New York,

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

6, 8

Plumhoff v. Richard,

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

9

Quinones-Pimentel v. Cannon,

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

16

Scott v. Harris,

550 U.S. 372 (2007) ......................................

9

Semayne’s Case,

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

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

5, 7

Silverman v. United States,

365 U.S. 505 (1961) ...................................

7

Snowden v. Henning,

72 F.4th 237 (7th Cir. 2023) ..................... 16, 17

United States v. Leon,

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

13

United States v. Karo,

468 U.S. 705 (1984) ...................................

8

iv

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Watson,

423 U.S. 411 (1976) ...................................

7

Utah v. Strieff,

579 U.S. 232 (2016) ...................................

13

Whiteley v. Warden, Wyo. State

Penitentiary,

401 U.S. 560 (1971) ...................................

14

Ziglar v. Abbasi,

582 U.S. 120 (2017) ................................... 4, 15

CONSTITUTION

U.S. Const. amend. IV ................................. 3-9, 13

OTHER AUTHORITIES

About Us, Federal Law Enforcement

Officers Association, https://www.fleoa.org/

about-us (last visited April 3, 2024) .........

1

National Consensus Policy and Discussion

Paper on Use of Force, Int’l Assoc. of

Chiefs of Police (Oct. 2017), https://www.

theiacp.org/sites/default/files/2018-08/Na

tional_Consensus_Policy_On_Use_Of_Fo

rce.pdf ........................................................

12

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

https://www.justice.gov/jm/1-16000-depar

tment-justice-policy-use-force (last visited

April 3, 2024).............................................

12

v

TABLE OF AUTHORITIES—Continued

Page(s)

St. Louis Division, Drug Enforcement

Administration, https://www.dea.gov/div

isions/st-louis (last visited April 3, 2024) ....

17

Use of Force Position Paper, Int’l Assoc. of

Chiefs of Police (2019), https://www.the

iacp.org/sites/default/files/2019-05/Use%

20of%20Force%20Task%20Force%20Rec

ommendations_Final%20Draft.pdf .......... 16-17

INTERESTS OF THE AMICUS CURIAE

Amicus Federal Law Enforcement Officers Association

(FLEOA)1 is the largest nonpartisan and nonprofit

professional association exclusively representing law

enforcement officers. About Us, Federal Law Enforcement Officers Association, https://www.fleoa.org/aboutus (last visited April 3, 2024). Founded in 1977, FLEOA

has served its members for over 40 years. It currently

represents more than 32,000 federal law enforcement

officers—including Petitioner Jeremy Henning—across

65 different federal agencies. Id. Those agencies include

U.S. Supreme Court Police, U.S. Secret Service, U.S.

Marshals Service, Department of Justice, Transportation

Security Administration, Federal Bureau of Investigation,

Drug Enforcement Agency, Customs and Border

Protection, Defense Criminal Investigative Service, and

Bureau of Alcohol, Tobacco, Firearms & Explosives. Id.

FLEOA’s membership encompasses all types of law

enforcement officers, from uniformed officers to

military police. Id. Because of this, FLEOA members

regularly face high risk and high stakes operations to

protect and serve the public.

FLEOA has a strong presence in the legislative

sphere, too. FLEOA is often called upon to testify in

congressional hearings on issues important to law

enforcement and public safety. Id. FLEOA has played

a key role in the passage of legislation important to its

members’ interests, including legislation related to

disability claims, retirement benefits, public safety

1

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

certifies that this brief was not authored in whole or in part by

counsel for any party and that no person or entity other than the

amicus or their counsel has made a monetary contribution to the

preparation or submission of this brief. The parties received

timely notice of this brief in accordance with Rule 37.2.

2

measures, and whistleblower protection. FLEOA is

thus uniquely attuned to the issues affecting federal law

enforcement and considerations relevant to Congress

when it considers legislation on matters of law

enforcement and public safety.

Because Mr. Henning is a FLEOA member, this case

is of particular importance to FLEOA. Beyond Mr.

Henning, this case also has wide-ranging implications

for all federal law enforcement officers who have

frequent contact with the public. FLEOA is concerned

about the potential expansion of personal liability into

a new context without congressional action, and the

potential adverse consequences it poses to officers who

routinely risk their lives and interact with the public.

Expansion of Bivens v. Six Unknown Named Agents of

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

even allowing the current circuit split to persist, could

have unintended adverse impacts on morale, recruitment,

and most importantly public safety. Allowing expansion

in some, but not all, jurisdictions would only exacerbate the adverse consequences. There may come a

point when federal law enforcement officers weigh the

costs and benefits of serving the public and determine

it is not worth the personal financial risk.

FLEOA submits this brief because the 7th Circuit’s

opinion below is plainly wrong under this Court’s Bivens

decisions. It misapplies the “new context” analysis and

ignores at least two meaningful differences: the difference between searches and seizures with or without

warrant, and the difference between searches and

seizures in a private home versus a public setting. Any

further expansion of damages claims is a legislative

endeavor, not for the courts. We therefore support

Mr. Henning’s petition for writ of certiorari to review

3

whether searches and seizures in public spaces, pursuant

to a warrant, present a new Bivens context.

SUMMARY OF THE ARGUMENT

Recognizing claims against federal officials for

monetary damages has far-reaching implications. For

federal law enforcement officers, the threat of personal

liability can cause hesitation in critical moments, decrease

morale and recruitment, and leave our communities

under-protected. These risks are heightened when

different standards are applied across differing

geographical jurisdictions.

This Court plainly stated two years ago, “[a]t bottom,

creating a cause of action is a legislative endeavor.”

Egbert v. Boule, 596 U.S. 482, 491 (2022). To adhere to

separation of constitutional powers, courts presented

with a Bivens claim must engage in the “new context”

analysis. If a Bivens claim is meaningfully different

from the only three recognized by this Court, the

context is “new.” New Bivens contexts nearly always

“represent situations in which a court is not undoubtedly better positioned than Congress to create a

damages action.” Id. at 492.

As an organization that regularly educates Congress

on issues critical to federal law enforcement, and

whose members routinely interact with the public,

FLEOA sees many meaningful distinctions between

the facts alleged here and Bivens. The decision below

erred in equating an alleged violation of the Fourth

Amendment during an arrest pursuant to a warrant in

a hotel lobby with the warrantless search and seizure

in a private home in Bivens. For the new context

presented in this case, Congress is better suited to

create a damages remedy. By recognizing a new cause of

action, the courts below wrongly infringed on

4

Congress’s authority and deepened a circuit split.

Review is warranted.

ARGUMENT

In Bivens, this Court “broke new ground by holding

that a person claiming to be the victim of an unlawful

arrest and search could bring a Fourth Amendment

claim for damages against the responsible agents even

though no federal statute authorized such a claim.”

Hernandez v. Mesa, 589 U.S. 93, 99 (2020). But in

recent years, this Court has come “to appreciate

more fully the tension between this practice and the

Constitution’s separation of legislative and judicial

power,” moving away from the “ancien regime” that

judicially created implied causes of action. Id.

When evaluating whether to extend Bivens liability,

“the most important question is who should decide

whether to provide for a damages remedy, Congress or

the courts?” Id. at 114. (quotations omitted). As this

Court correctly noted, the “answer most often will be

Congress.” Id. 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,” a Bivens claim must fail. Egbert, 596 U.S. at

496 (internal quotations omitted). Accordingly, this Court

has warned that expanding Bivens is “disfavored judicial

activity.” Ziglar v. Abbasi, 582 U.S. 120, 121 (2017).

Analysis of a Bivens claim begins with the inquiry of

whether the case “presents a new Bivens context,” i.e.

“whether it is meaningfully different from the three

cases in which the Court has implied a damages

action.” Egbert, 596 U.S. at 492. (quotations omitted).

Because differences that are “perhaps small, at least

in practical terms” are meaningful, “the new-context

inquiry is easily satisfied.” Ziglar, 582 U.S. at 149. A

5

case can present a new context even if it is based on

the same constitutional amendment as one of the three

recognized Bivens claims. Hernandez, 589 U.S. at 103.

Given this low bar, an alleged Fourth Amendment

violation in a hotel lobby while executing a courtapproved warrant is meaningfully different than the

warrantless search and seizure in a private home in

Bivens.

I. FOURTH AMENDMENT RIGHTS VARY IN

THE HOME AND IN PUBLIC.

Since this country’s inception, a person’s home has

been afforded unique protection against government

intrusion. One’s home is a “castle and fortress, as well

as 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)). Enforcing this principle, this Court has strictly limited the actions a law

enforcement officer may take in a home. This protection against government intrusion does not equally

extend outside the home. See, e.g. Florida v. White, 526

U.S. 599 (1999) (“[O]ur Fourth Amendment jurisprudence has consistently accorded law enforcement

officials greater latitude in exercising their duties in

public places.”)

In addition to individual rights, the setting of an

arrest—whether in public or in a private home—

influences an officer’s conduct, too. A private residence

can be canvassed in advance, secured from the perimeter, and swept to control and identify all occupants. On

the other hand, a public setting is unpredictable and

more dangerous. It is nearly impossible to secure a

public area, like a hotel lobby. Public settings are

exposed to potential intervention by unidentified

bystanders. There is a heightened flight risk and

6

greater potential for harm to innocent onlookers.

Flexibility is paramount to combat these extra

challenges and added dangers. Officers’ split-second

decisions under such demanding and dangerous

circumstances cannot be second-guessed in the same

manner as more controlled actions to enter the privacy

of one’s home. Federal law enforcement officers, and

FLEOA’s membership, know this.2 This Court too

should recognize this meaningful difference.

A. Additional Legal Protections in Private

Homes

The Fourth Amendment protects “[t]he right of the

people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures.”

U.S. Const. amend. IV. The unique treatment of an

individual’s home as a place free from government

intrusion predates the Constitution. It is rooted in

English common law. Payton v. New York, 445 U.S. 573,

596 n. 45 (1980) (“We have long recognized the relevance

of the common law’s special regard for the home to the

development of Fourth Amendment jurisprudence”).

English common law displayed “a sensitivity to

privacy interests that could not have been lost on the

Framers.” Id. The “zealous and frequent repetition of

the adage that a ‘man’s house is his castle,’ made it

abundantly clear that both in England and in the

Colonies ‘the freedom of one’s house’ was one of the

most vital elements of English liberty.” Id. at 596-97.

This Court declared “it is beyond dispute that the

2

To prepare this brief, FLEOA distributed a survey to its

members to gather information to support this brief. Survey

respondents were asked about the practical differences between

making an arrest in public and private, and making an arrest

pursuant to or without a warrant.

7

home is entitled to special protection as the center of

the private lives of our people.” Georgia v. Randolph,

547 U.S. 103, 115 (2006) (citations omitted).

An individual’s home provides more than privacy. It

is the resident’s “defen[s]e against injury and violence.”

Lange, 141 S. Ct. at 2022 (quoting Semayne’s Case, 5

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

Americans have “lived our whole national history with

an understanding of the ‘ancient adage that a man’s

house is his castle [to the point that t]he poorest man

may in his cottage bid defiance to all the forces of the

Crown.’” Randolph, 547 U.S. at 115 (quoting Miller v.

United States, 357 U.S. 301, 309 (1958)). “It may be

frail; its roof may shake; the wind may blow through

it; the storm may enter; the rain may enter; but the

King of England cannot enter—all his force dares not

cross the threshold of the ruined tenement!” Lange,

141 S. Ct. at 2022.

Freedom from government intrusion lies at the heart

of the Fourth Amendment’s protections. The Fourth

Amendment, and this Court’s precedent, sharply circumscribes law enforcement conduct in the home. “The

Fourth Amendment, and the personal rights which it

secures, have a long history. At the very core stands

the right of a man to retreat to his own home and there

be free from unreasonable government intrusion.”

Silverman v. United States, 365 U.S. 505, 511 (1961).

Recognizing the home as a place of special solicitude is

necessary because “‘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.

114, 118 (1990) (quoting United States v. Watson, 423

U.S. 411 (1976)). There lies a “firm line at the entrance

to the house,” such that absent exigent circumstances,

a federal law enforcement officer may not cross that

8

line without a warrant. Payton, 445 U.S. at 590; United

States v. Karo, 468 U.S. 705, 714-15 (1984). “The police

may act without waiting” for a warrant and enter a

private home only in cases of “emergency”—“such as

imminent harm to others, a threat to the officer

himself, destruction of evidence, or escape from the

home.” Lange, 141 S. Ct. at 2021.

Law enforcement officers are well versed in Fourth

Amendment protections for individuals and limitations

on government. FLEOA’s members attest to the

extensive training federal officers receive to protect

Fourth Amendment rights and prevent improper

government intrusion. One survey respondent explained,

“I have been trained to treat a subject’s dwelling with

the utmost concern for their constitutional rights.”

Another said: “We are trained and treat a dwelling as

sacrosanct, and only with proper authorization from a

court is entering a subject’s dwelling to make an arrest

acceptable.” FLEOA knows how DEA agents (like

Petitioner Henning) are subject to scenario-based training

exercises to practice executing searches and seizures

in the home. During this training, legal subject matter

experts coach officers how to perform their duties in a

lawful, constitutional manner. Fourth Amendment

rights are ever-present in the mind of a law enforcement officer executing a search or seizure in a private

home. As they should be. Officers do not want to risk

their lives to collect evidence only to have such

evidence suppressed as the result of their own conduct.

Davis v. United States, 564 U.S. 229, 236-37 (2011).

B. Differences Between Law Enforcement

Activity in Public and Private

Public settings present a myriad of unique challenges

to law enforcement officers that are not present in a

private home. Courts acknowledge “the fact that police

9

officers are often forced to make split-second judgments—

in circumstances that are tense, uncertain, and rapidly

evolving—about the amount of force that is necessary

in a particular situation” in determining whether an

officer’s use of force is reasonable. Graham v. Connor,

490 U.S. 386, 396-97 (1989). This Court recognized a

law enforcement officer’s greater discretion to use

force in public places, holding “that a ‘police officer’s

attempt to terminate a dangerous high-speed car

chase that threatens the lives of innocent bystanders

does not violate the Fourth Amendment, even when it

places the fleeing motorist at risk of serious injury or

death.’” Plumhoff v. Richard, 572 U.S. 765, 776 (2014)

(quoting Scott v. Harris, 550 U.S. 372, 386 (2007)). In

addition to the differing constitutional obligations, law

enforcement officers executing searches and seizures in

public settings also face more unpredictable environments that impact their split-second, use of force

decisions. These unique challenges are paramount

to FLEOA’s members. Over 70% of FLEOA survey

respondents identified differences between making

arrests in public versus private settings. From this

data, common themes emerged.

1. Limited Preparation and Lack of

Control

Preparation is key to a safe and lawful arrest.

Preparation differs depending on the location of the

arrest. One FLEOA survey respondent stated that

the “considerations that go into planning the execution

of an arrest within a private dwelling are worlds apart

from making an arrest in an area accessible to

the public.” FLEOA members explained that public

arrests “almost always involve meticulous planning

for unseen contingencies,” and require “additional

planning to address multiple egress points, the safety

10

of many bystanders and agent safety in an often open

and uncontrolled area.”

A public setting does not permit officers to use the

same techniques to prepare for an arrest or control the

scene. In a public setting, officers cannot identify or

investigate every potential bystander, whereas officers

can surveil a private home and surmise who may be

present. Once identified, officers can search their

criminal history. When making “an arrest in a home

the agent usually has run criminal checks on the

people likely to be in the home. The agent knows about

registered weapons in the home and enters the home

with some knowledge of the occupants,” one FLEOA

survey respondent reported. For public arrests, however,

“[t]he agent cannot do criminal checks on people who

will be in the location of the arrest. The agent has no

idea how many additional people will be present at the

arrest and has less control over the additional people.

The agent would have no idea if any of the extra people

in the public space are armed or even if they too are

law enforcement.” Another respondent explained: “Arrests

in public places often involve finding people unexpectedly. These often are also much more unpredictable

and due to their nature involve more risk to law

enforcement.” With so many unknowns, officers can

only guess who may be present at a public scene, whether

they are dangerous, and how a scenario will play out.

With more unknowns comes more danger. “Public

places tend to [be] more unpredictable due to the

ever changing nature of the environment,” said one

survey respondent. Another described a public setting

as having “a significantly higher number of unknown

variables, which leads to increased risk of something

going wrong.” Several respondents echoed this sentiment

of the unpredictable nature and inability to control

11

public settings. “In public places, law enforcement has

less control of the premises, and are therefore subject

to more unpredictable environments.”

This unpredictability and lack of control can factor

into an officer’s decision about the amount of force to

use. As one FLEOA member put it: “In such [public]

settings, the ‘open’ nature of the location presents more

opportunity for the suspect to flee, and significantly

less opportunity for law enforcement to have a proper

perimeter, as is done around a private house.” Because

of a greater flight risk, “[s]ecuring the suspect quickly

becomes much more important in a public setting,”

according to one FLEOA member. “It all boils down to,”

another survey respondent said, that there “is less

ability to contain the entire situation and more chaos

can ensue due to the vast number of possibly ‘what if ’

scenarios that can happen” during a public arrest.

In planning public arrests, officers are reportedly

“less likely to be able to utilize all available law

enforcement assets and overt presence, because [they]

likely need to maintain a covert presence until the last

possible moment.” For instance, a FLEOA respondent

explained that “[p]ublic places don't afford the ability

to use armored vehicles by and large and don't allow

us to dictate the location, which is a safety advantage

to officers.” As a result, public arrests pose greater

safety risks.

2. Heightened Risks to the Officer and

the Public

Arrests in public include greater risks of danger to

both the officers and the public. Innocent bystanders will

inevitably be present during a public arrest. The safety

of these bystanders is a key consideration for law

enforcement. FLEOA survey respondents said, because

12

“[a]rrests in public areas are inherently dangerous due

to the potential risk of harm to innocent bystanders”

officers must “devote more attention to ensuring the

safety of bystanders.”

To ensure the safety of innocent bystanders, application of force can be necessary.3 FLEOA survey

respondents report that “the approach to gain control

and compliance is far more aggressive” in public. “[W]hen

affecting essential open air takedowns, agents must

gain compliance quickly. So assisting the subject to the

ground is a common tactic.” Another FLEOA member

explained that “swift and timely arrests are needed to

prevent harm to the arrested, officers and public.”

Such force necessarily “prevents flight of the subject as

well.”4 Swift application of force “allows for the arrest

to be affected in a safe and secure manner.” This type

of force is justified and necessary in public settings to

protect the officers and any innocent bystanders.

While bystanders to a public arrest require protection,

their involvement also poses a potential threat. FLEOA

members have encountered bystanders “trying to prevent

[them] from doing [their] job,” and “interfere[ing] with

3

Indeed, Department of Justice policy permits use of deadly

force “only when necessary,” including when “an individual poses

an imminent danger of death or serious physical injury” to

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

https://www.justice.gov/jm/1-16000-department-justice-policy-useforce (last visited April 3, 2024).

4

According to a 2017 policy paper derived from law enforcement organizations nationwide, use of deadly force is justified to

prevent the escape of a fleeing suspect believed to have committed

a dangerous felony and who poses an imminent risk of serious

body injury to others if not apprehended. See National Consensus

Policy and Discussion Paper on Use of Force, Int’l Assoc. of Chiefs

of Police (Oct. 2017), https://www.theiacp.org/sites/default/files/

2018-08/National_Consensus_Policy_On_Use_Of_Force.pdf.

13

lawful arrests.” One FLEOA respondent explained

that certain criminals use bystanders to their advantage

and “cause a ‘scene’ in order to elicit sympathy from

bystanders” which can “increase the danger to LEOs,

critically diminish the time available for any negotiations

and at times, can lead to more assertive and definite

actions from the LEOs to safely conduct the arrest.”

Bystander involvement is more likely from “bystanders

that may perceive the level of force excessive.”

As the FLEOA members describe, effectuating

arrests in public is markedly different than arrests in

a private home. The planning, techniques, decisions

to use force, and dangers presented all differ. These

considerations do not equally apply to law enforcement

activity inside the home. It logically follows that claims

for monetary damages for Fourth Amendment violations

in a public hotel lobby are meaningfully different than

Bivens. In this new context, Congress, not the courts,

is better suited to create a cause of action.

II. SEARCHES AND SEIZURES WITH A WARRANT ARE MEANINGFULLY DIFFERENT

THAN WITHOUT A WARRANT.

Like comparing searches and seizures in public to

the privacy of the home, conducting a warrantless

arrest and effectuating an arrest pursuant to a

warrant are also meaningfully different. The existence

of a warrant impacts an officer’s ability to plan their

course of action. But the most glaring difference is

that officers executing a judicially issued warrant

are carrying out a judicial mandate. See Utah v. Strieff,

579 U.S. 232 (2016). Because of a warrant’s mandatory

nature, “the officer has a sworn duty to carry out its

provisions.” Id. at 240 (citing United States v. Leon, 468

U.S. 897 (1984)). A search or seizure effectuating a

warrant is essential to the proper functioning of the

14

Judicial Branch. A judge or magistrate who issues the

warrant necessarily relies on federal law enforcement

agents in the Executive Branch to enforce a court’s

orders. Creating a new cause of action against federal

officers effectuating a warrant implicates a wide array

of policy considerations, and even the proper functioning

of the judicial system. Congress is undoubtedly better

suited to consider such policy considerations when

creating a cause of action.

FLEOA’s members confirm that conducting a search

or seizure is markedly different with a warrant versus

without a warrant. A warrant may only be approved

after “an independent judgment that probable cause

exists for the warrant.” Whiteley v. Warden, Wyo. State

Penitentiary, 401 U.S. 560, 565 (1971). Law enforcement officers are generally more comfortable effectuating

a search and seizure pursuant to a warrant because

a judge already determined probable cause exists.

FLEOA survey respondents reported that “a warrant

arrest is based on probable cause reviewed and

approved by a judge, based on specific charges that

should generally indicate the possible dangers officers

would face” and “arrest pursuant to a warrant carries

the weight of a court order to execute the arrest.”

Another explained, it “comes down to the probable

cause and signature of a judge prior to making an

arrest. This ensures that you are acting in good faith

due to the fact that an impartial judge has reviewed

and signed off on the [probable cause] for the warrant.”

Rather than relying on their own judgment, an arrest

under warrant “has established probable cause that

has already been vetted and validated by the judge.”

On the other hand, a warrantless search and seizure

requires an officer to independently assess and determine probable cause. This determination is “based

15

upon training and experience to know when the elements

of probable cause are met,” as one FLEOA respondent

explained. Exercising this discretion carries certain

risks. A FLEOA survey respondent explained: “Warrantless arrests make law enforcement inherently more

personally liable since the arrest is their discretion

rather than court ordered.” Another respondent opined

that a “warrantless arrest [] would be under more

scrutiny by the courts.” Because of these meaningful

differences, a cause of action for alleged excessive force

while executing a warrant presents a new Bivens

context.

III. UNCERTAINTY OF OFFICER PERSONAL

LIABILITY JEOPARDIZES PUBLIC SAFETY.

The “burden and demand” of Bivens litigation against

federal law enforcement officials “might well prevent

them—or, to be more precise, future officials like

them—from devoting the time and effort required for

the proper discharge of their duties.” Ziglar, 582 U.S.

at 141 (2017); see Egbert, 596 U.S. at 498 (acknowledging that “risk that fear of personal monetary liability

and harassing litigation will unduly inhibit officials in

the discharge of their duties”). In the face of personal

liability, law enforcement officers may “hesitate to exercise their discretion in a way ‘injuriously affect[ing]

the claims of particular individuals,’ even when the

public interest required bold and unhesitating action.”

Nixon v. Fitzgerald, 457 U.S. 731, 744-45 (1982)

(citations omitted). The mere threat of Bivens litigation

may cause “the deterrence of able citizens from

acceptance of ” federal law enforcement positions.

Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982). The

absence of uniform standards across all federal

jurisdictions exacerbates these risks.

16

The circuit courts of appeal are split on whether an

arrest outside a private home5 or an arrest pursuant

to a warrant6 present a new Bivens context. Federal

law enforcement officers feel the effects. Numerous

FLEOA survey respondents worry that the inconsistent standards across federal jurisdictions pose a

threat to their personal safety. As one survey respondent

explained, “second-guessing an action which was learned,

trained and judicially backed in one jurisdiction but

not supported in another, in the midst of a rapidly

evolving and potentially life-threatening situation, could

have dire consequences on the safety of the arresting

officers, the subject, and any bystanders.” Other respondents echoed this concern: “These difference[s] would

require different planning and subject LEOs to second

guess any actions taken at the time of arrest exposing

them to undue risk of harm or death by not addressing

possible threats promptly;” and “The hesitation makes

it more dangerous for officers and the public.” Law

enforcement officers nationwide agree.7

5

In the First, Fifth, Eighth and Ninth Circuits, claims arising

from searches and seizures outside a private home present a new

context. Quinones-Pimentel v. Cannon, 85 F.4th 63 (1st Cir. 2023);

Olivia v. Nivar, 973 F.3d 438 (5th Cir. 2020); Ahmed v. Weyker, 984

F.3d 564 (8th Cir. 2020); Mejia v. Miller, 61 F.4th 663 (9th Cir.

2023). In contrast, the Fourth, Seventh and Tenth Circuits reject

this argument. Hicks v. Ferreyra, 64 F.4th 156 (4th Cir. 2023);

Snowden v. Henning, 72 F.4th 237 (7th Cir. 2023); Logsdon v. U.S.

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

6

Only the Seventh and Tenth Circuits have held that an action

taken pursuant to a valid warrant is not relevant to the new

context inquiry. Snowden, 72 F.4th at 247; Logsdon, 91 F.4th at

1357.

7

See Use of Force Position Paper, Int’l Assoc. of Chiefs of Police

(2019), https://www.theiacp.org/sites/default/files/2019-05/Use%2

0of%20Force%20Task%20Force%20Recommendations_Final%20

17

Fear of a lawsuit may distract law enforcement

officers’ from their important mission. Such trepidation

is heightened when the same set of facts in one

jurisdiction could produce different consequences in

another jurisdiction. Many federal law enforcement

officers work in multiple jurisdictions. For instance,

several federal law enforcement agencies have field

offices in St. Louis, Missouri. See, e.g. St. Louis Division,

Drug Enforcement Administration, https://www.dea.

gov/divisions/st-louis (last visited April 3, 2024).

Officers assigned to the DEA’s St. Louis field office

routinely conduct law enforcement activity in Missouri

and just across the Mississippi River in Illinois. Id. The

court below held that in Illinois a “[h]otel or home,

warrant or no warrant” are not meaningful differences

to present a new Bivens context. Snowden, 72 F.4th at

247 (2023). However, if the same events and suit

occurred in Missouri, it is a new Bivens context if the

officer “did not enter a home.” Ahmed, 984 F.3d at 568.

This is illogical. It is also unreasonable to expect federal

law enforcement officers to keep track of such

distinctions when working on different sides of a river

in the same metropolitan area.

This circuit split could cause officers to hesitate or

second-guess, and in turn endanger both officer and

public safety nationwide. Some FLEOA survey respondents admit they are reluctant to work in certain

jurisdictions and may avoid those assignments and

details. Federal law enforcement decisions and actions

should not be influenced by geographic jurisdiction.

Draft.pdf (liability related to an officer’s use of force “jeopardizes

officer safety, and therefore community safety, as it will cause

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”).

18

Allowing this to continue could lead to differing levels

of federal policing across states. The public deserves

better. FLEOA asks this Court to grant certiorari to

resolve this circuit split and provide clarity to federal

law enforcement officers so they give their undivided

attention to their ultimate goal – to protect and serve.

CONCLUSION

For these reasons, this Court should grant the

petition and reverse the decision below.

Respectfully submitted,

DEBRA L. ROTH

Counsel of Record

CHRISTOPHER J. KEEVEN

SHAW BRANSFORD & ROTH P.C.

1101 Connecticut Avenue, NW

Ste 1000

Washington, D.C. 20036

(202) 463-8400

droth@shawbransford.com

Counsel for Amicus Curiae

April 5, 2024