Opposition Brief — Jeremy Henning, Petitioner v. Donald V. Snowden

No. 23-976

IN THE

Supreme Court of the United States

______________________________

JEREMY HENNING

v.

DONALD V. SNOWDEN,

Petitioner,

Respondent.

______________________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals for the

Seventh Circuit

______________________________

BRIEF IN OPPOSITION

______________________________

Samuel Weiss

RIGHTS BEHIND BARS

416 Florida Ave, N.W.

Suite 26152

Washington, D.C. 20001

(202) 455-4399

David M. Zionts

Counsel of Record

Daniel Randolph

Larissa Davis

COVINGTON & BURLING LLP

One CityCenter

850 Tenth Street, N.W.

Washington, DC 20001

dzionts@cov.com

(202) 662-5987

Counsel for Respondent

June 17, 2024

i

QUESTION PRESENTED

Whether a cause of action for a use of excessive

force in violation of the Fourth Amendment exists “in

this case,” Pet. i, where a line-level officer of the Drug

Enforcement Administration allegedly punched in the

face several times an individual who was not resisting

arrest.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...........................................i

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

INTRODUCTION ........................................................ 1

STATEMENT .............................................................. 3

REASONS FOR DENYING THE PETITION ............ 8

I.

There Is No Circuit Split Concerning the

Precise Scope of the Original Bivens Context. ..... 8

A. There Is No Circuit Split Regarding

Whether Arrests Outside the Home

Categorically Present a New Bivens

Context. ......................................................... 10

B. There Is No Circuit Split Regarding

Whether an Excessive Force Claim

Presents a New Bivens Context When

the Arrest Was Conducted Pursuant to

a Warrant...................................................... 19

II. The Decision Below Is Correct. .......................... 23

III. This Case Is a Poor Vehicle for Review.............. 31

CONCLUSION .......................................................... 33

iii

TABLE OF AUTHORITIES

Page

Cases

Ahmed v. Weyker,

984 F.3d 564 (8th Cir. 2020) ....................... 14, 15

Ashcroft v. Iqbal,

556 U.S. 662 (2009) ......................................... 3, 4

Bivens v. Six Unknown Named Agents of

Fed. Bureau of Narcotics,

403 U.S. 388 (1971) ................................... 1, 3, 26

Byrd v. Lamb,

990 F.3d 879 (5th Cir. 2021) ................. 12, 13, 14

Cain v. Rinehart,

No. 22-1983, 2023 WL 6439438 (6th Cir.

July 25, 2023) .............................................. 21, 22

Cantú v. Moody,

933 F.3d 414 (5th Cir. 2019) ................. 12, 13, 14

Carlson v. Green,

446 U.S. 14 (1980) ............................................. 30

Cutter v. Wilkinson,

544 U.S. 709 (2005) ........................................... 32

Egbert v. Boule,

142 S. Ct. 357 (2021) ........................................... 1

Egbert v. Boule,

596 U.S. 482 (2022) ....................... 2, 3, 26, 29, 30

iv

Ferreyra v. Hicks,

144 S. Ct. 555 (2024) ..................................... 1, 11

Graham v. Connor,

490 U.S. 386 (1989) ..................................... 24, 27

Graiser v. Visionworks of Am., Inc.,

819 F.3d 277 (6th Cir. 2016) ............................. 21

Hernandez v. Mesa,

589 U.S. 93 (2020) ....................................... 2, 4, 8

Hicks v. Ferreyra,

64 F.4th 156 (4th Cir. 2023) ............................. 16

Logsdon v. U.S. Marshal Service,

91 F.4th 1352 (10th Cir. 2024) ............. 16, 17, 22

Maryland v. Buie,

494 U.S. 325 (1990) ........................................... 25

Massaquoi v. FBI,

No. 2:21-cv-08569-SVW, 2022 WL

2234961 (C.D. Cal. Mar. 15, 2022) ................... 21

Massaquoi v. FBI,

No. 22-55448, 2023 WL 5426738 (9th

Cir. Aug. 23, 2023) ............................................ 21

Mejia v. Miller,

61 F.4th 663 (9th Cir. 2022) ................. 15, 17, 27

Minneci v. Pollard,

565 U.S. 118 (2012) ............................................. 6

Muehler v. Mena,

544 U.S. 93 (2005) ............................................. 26

v

Oliva v. Nivar,

973 F.3d 438 (5th Cir. 2020) ....................... 12, 13

Payton v. New York,

445 U.S. 573 (1980) ........................................... 25

Quinones-Pimentel v. Cannon,

85 F.4th 63 (1st Cir. 2023) .............. 11, 12, 19, 20

Seattle's Union Gospel Misson v. Woods,

142 S. Ct. 1094 (2022) ....................................... 31

Town of Castle Rock v. Gonzales,

545 U.S. 748 (2005) ........................................... 28

Tun-Cos v. Perrotte,

922 F.3d 514 (4th Cir. 2019) ............................. 28

Tun-Cos v. Perrotte,

140 S. Ct. 2565 (2020) ....................................... 28

United States v. Williams,

504 U.S. 36 (1992) ............................................. 31

Utah v. Strieff,

579 U.S. 232 (2016) ........................................... 28

Ziglar v. Abbasi,

582 U.S. 120 (2017) ....... 1–4, 6, 15, 18, 23, 27–29

Statutes

21 U.S.C. § 878(a) ................................................... 29

28 U.S.C. § 1915A..................................................... 5

vi

Other Authorities

Nat'l Archives, Records of the Drug

Enforcement Administration (DEA),

https://perma.cc/Y4MX-LSS5 (archived

June 16, 2024) ................................................... 29

Petition for Writ of Certiorari, Egbert v.

Boule, No. 21-147, 2021 WL 3409109

(U.S. July 30, 2021)............................................. 1

Petition for Writ of Certiorari, Ferreyra v.

Hicks, No. 23-324, 2023 WL 6367653

(U.S. Sept. 22, 2023) ......................................... 11

1

INTRODUCTION

In recent years, this Court has provided detailed

guidance on whether and when to recognize a cause of

action against a federal official accused of violating

the Constitution. Although the Court has emphasized

the narrow judicial role in this area, it has also

refused “to cast doubt on the continued force, or even

the necessity, of Bivens [v. Six Unknown Fed.

Narcotics Agents, 403 U. S. 388 (1971)] in the searchand-seizure context in which it arose.” Ziglar v.

Abbasi, 582 U.S. 120, 134 (2017). In Egbert v. Boule,

the Court again declined an invitation to overrule

Bivens. See Petition for Writ of Certiorari at i, Egbert

v. Boule, No. 21-147, 2021 WL 3409109, at *i (asking

the Court to overrule Bivens as Question 3), cert.

granted in part by 142 S. Ct. 357 (2021) (granting

certiorari “limited to Questions 1 and 2”). And just a

few months ago, confronted with a claimed circuit

split centering on the location of an unlawful

seizure—one of the same issues presented here—the

Court denied certiorari. See Ferreyra v. Hicks, 144 S.

Ct. 555 (2024).

In the face of all of this, Petitioner asks this Court

to superintend the precise scope of the original core of

Bivens. Respondent Donald Snowden alleges that

Petitioner Jeremy Henning, a line-level drug

enforcement agent, “pushed him to the ground and—

unprovoked—punched him several times in the face,”

causing “two black eyes and a left orbital fracture.”

Pet. App. 2a. The Seventh Circuit, in a careful,

narrowly drawn opinion by Chief Judge Sykes, could

“identify no meaningful difference between Snowden’s

case and Bivens to suggest that he should not be able

2

to pursue [an] excessive force claim.” Pet. 15a. That

ruling was as sound as it was unexceptional, and it

does not warrant this Court’s attention.

The purported circuit splits that are the basis for

Petitioner’s request are illusory. The first one,

concerning the location of the search or seizure giving

rise to a Bivens claim, is the same alleged split this

Court declined to review a few months ago, and

remains grounded on a misreading of several

decisions. The second asserted split likewise does not

exist, is based on a similar misreading, and relies

principally on unpublished decisions.

As the court of appeals correctly recognized, the

path for Bivens claims is “narrow” but not nonexistent, and this case is in the “heartland of Bivens.”

Pet. App. 13a, 15a; see also Pet. App. 15a–19a. This

case has little in common with those this Court has

previously considered it necessary to review, involving

national security decisions in the aftermath of 9/11,

see Abbasi, 582 U.S. at 142–43, cross-border

shootings, see Hernandez v. Mesa, 589 U.S. 93, 96

(2020), and agents responsible for policing the border

and enforcing the nation’s immigration laws, see

Egbert v. Boule, 596 U.S. 482, 496 (2022). As far as

the allegations and claims in this case are concerned,

Agent Henning is materially indistinguishable from

the six federal narcotics agents who used excessive

force against Webster Bivens in the course of

arresting him. The court of appeals’ conclusion that

this case falls within the heartland of Bivens does not

merit further review.

3

STATEMENT

1. In Bivens v. Six Unknown Named Agents of the

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

Court recognized an implied damages remedy against

federal officers who committed an unreasonable

search and seizure. Bivens involved an action against

line-level narcotics agents for their unreasonable use

of force during an arrest, as well as their unlawful

search of the plaintiff’s home and person—all in

violation of the Fourth Amendment. Bivens, 403 U.S.

at 389.

Since the Bivens decision, this Court has observed,

“arguments for recognizing implied causes of action

for damages began to lose their force,” with the Court

cautioning that “expanding the Bivens remedy is now

a ‘disfavored’ judicial activity.” Abbasi, 582 U.S. at

132, 135 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675

(2009)). At the same time, the Court has reaffirmed

“the continued force, [and] even the necessity, of

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

arose.” Abbasi, 582 U.S. at 134. The Court has called

Bivens a “settled” and “fixed principle of law” in the

“common and recurrent sphere of law enforcement,”

and recognized “powerful reasons to retain it.” Id.

Under the Court’s modern Bivens jurisprudence,

“a court’s analysis of a proposed Bivens claim”

proceeds “in two steps.” Egbert, 596 U.S. at 492. A

court first asks “whether the case presents ‘a new

Bivens context’—i.e., is it ‘meaningfully’ different from

the three cases in which the Court has implied a

damages action.” Id. (cleaned up) (quoting Abbasi,

582 U.S. at 139). This Court has guided the lower

4

courts with an “instructive” set of examples of what

differences might be “meaningful” for purposes of

establishing a new context, including differences in

the “rank of the officers involved,” the “extent of

judicial guidance as to how an officer should respond

to the problem,” and the “statutory or other legal

mandate under which the officer was operating.”

Abbasi, 582 U.S. at 139–40. Only when a court finds

that a case presents a new context should it “proceed

to the second step and ask whether there are any

‘special factors that counsel hesitation’ about granting

[an] extension.” Hernandez, 589 U.S. 102. (cleaned

up) (quoting Abbasi, 582 U.S. at 140).

2. On September 12, 2019, Respondent Donald

Snowden was lodging at the Quality Inn Hotel in

Carbondale, Illinois. Pet. App. 4a.1 Around noon that

day, he answered a call from a hotel desk clerk who

asked Mr. Snowden to come to the front desk, which

he did. Pet. App. 4a. Waiting for Mr. Snowden in the

lobby was an agent of the Drug Enforcement

Administration (“DEA”), Jeremy Henning, who had a

warrant for Mr. Snowden’s arrest. Pet. App. 4a.

At no point did Mr. Snowden resist arrest. Pet.

App. 4a. Yet “Agent Henning rushed at him, pushing

him into a door and onto the ground.” Pet. App. 4a.

Agent Henning then “punched [Mr. Snowden] several

times in the face.” Pet. App. 4a. Mr. Snowden

“suffered two black eyes and a fractured left eye socket

during the arrest.” Pet. App. 4a. Mr. Snowden

1 The facts presented here are based on the factual allegations in

the complaint, which must be treated as true at the motion to

dismiss stage. See Iqbal, 556 U.S. at 678.

5

maintains that there is “video evidence confirming his

account”; he sought this video evidence in discovery

but the district court denied his request as

“premature.” Pet. App. 4a n.2.

3. Proceeding pro se, Mr. Snowden filed a lawsuit

on December 2, 2019 in the U. S. District Court for the

Southern District of Illinois. Pet. App. 4a; see also

C.A. Short App. 15. In addition to claims against

other defendants, Mr. Snowden alleged that Agent

Henning’s “grossly excessive force” violated the

Fourth Amendment and Illinois state law. Pet. App.

4a. The district court screened the complaint under

the Prison Litigation Reform Act (“PLRA”), 28 U.S.C.

§ 1915A, and allowed it to proceed, construing the

Fourth Amendment count as a claim for relief under

Bivens. Pet. App. 4a.

On March 3, 2021, the district court granted Agent

Henning’s motion to dismiss. Pet. App. 21a. The

district court described the facts alleged by Mr.

Snowden as “similar” to Bivens. Pet. App. 26a. It

nonetheless concluded that the case presented a new

Bivens context because “Bivens involved six federal

drug agents” while this case involves a “single” agent,

and the officers in Bivens “enter[ed] a home without a

warrant” while Agent Henning arrested Mr. Snowden

“in public pursuant to a warrant.” Pet. App. 26a–27a.

The district court also viewed the issue in Bivens as

limited to “the constitutionality of the home entry,

arrest, and search without a warrant,” while this case

involves “the amount of force that can reasonably be

used during an arrest.” Pet. App. 27a. Having

concluded at step one that the case presented a new

Bivens context, the district court decided that the

6

Federal Tort Claims Act (“FTCA”) is an alternative

remedy that counsels hesitation, and thus declined to

extend Bivens at step two. Pet. App. 29a.

Mr. Snowden timely appealed the district court’s

order dismissing his Bivens claim. Pet. App. 6a–7a.

4. In a unanimous opinion authored by Chief Judge

Sykes, a panel of the Seventh Circuit reversed. Pet.

App. 3a. The court of appeals began by recognizing

that “extending the Bivens cause of action is a

‘disfavored judicial activity,’” and introduced this

Court’s “two-step framework for evaluating Bivens

claims” as “guard[ing] against encroachments on

legislative authority.” Pet. App. 2a (quoting Abbasi,

582 U.S. at 120). It further took heed of this Court’s

decision in Egbert as “emphasiz[ing] just how narrow

the path is for a Bivens claim to proceed.” Pet. App.

15a.

Nonetheless, the court of appeals explained, this

Court has “stopped short” of overruling Bivens. Pet.

App. 8a. The Seventh Circuit recognized that it was

bound by “the current state of the doctrine,” including

this Court’s instruction 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.’” Pet. App. 15a (quoting

Abbasi, 582 U.S. at 134).

The court of appeals “focus[ed]” on “the first step”

of the analysis. Pet. App. 8a. Discussing at length

this Court’s decisions in Ziglar v. Abbasi, Hernandez

v. Mesa, and Minneci v. Pollard, 565 U.S. 118 (2012),

the court explored what “differences” qualify as

“meaningful” for purposes of creating a new Bivens

7

context. Pet. App. 8a–15a. Applying this Court’s

instructions, it “identif[ied] no meaningful difference

between Snowden’s case and Bivens to suggest that he

should not be able to pursue this excessive force

claim.” Pet. App. 15a.

The court of appeals explained that Mr. Snowden’s

complaint involved “run-of-the-mill allegations of

excessive force during an arrest” as was the case in

Bivens. Pet. App. 18a. Both Agent Henning and the

officers in Bivens “operated under the same legal

mandate,” i.e., “the enforcement of federal drug laws,”

and both were also “the same kind of line-level federal

narcotics officers.” Pet. App. 15a. The court further

explained that Bivens was not only about a

warrantless search and seizure; Agent Henning

“overlooked that the claim in Bivens specifically

included an allegation that ‘unreasonable force was

employed in making the arrest,’” just as Mr. Snowden

alleged in his case. Pet. App. 17a (quoting Pet’r’s C.A.

Br.).

Nor did the “narrow factual differences” that

Agent Henning pointed to establish a meaningful

difference, in the court of appeals’ view. Pet. App. 17a.

The court explained that “[h]otel 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.” Pet. App. 18a. Because the court of appeals

could not “decline to apply ‘the settled law of Bivens’

unless Snowden’s case is meaningfully different,” and

there is “no such difference here,” it reversed the

district court’s threshold dismissal of Mr. Snowden’s

8

Fourth Amendment excessive force claim. Pet. App.

19a.2

5. The Seventh Circuit denied Agent Henning’s

petition for rehearing and rehearing en banc, with no

judge requesting a vote. Pet. App. 33a. Agent

Henning did not move the Seventh Circuit for a stay

of its mandate, and the case was accordingly

remanded to the district court. Represented by

different counsel before the district court than in his

petition to this Court, Agent Henning moved the

district court to stay proceedings, which that court

denied. Dist. Ct. Dkt. 49, 56. Discovery is now

ongoing. Dist. Ct. Dkt. 58.

REASONS FOR DENYING THE PETITION

I.

There Is No Circuit Split Concerning the

Precise Scope of the Original Bivens

Context.

Although the Seventh Circuit noted that “Bivens

may one day be reexamined,” Pet. App. 19a, Petitioner

does not ask the Court to reexamine Bivens here.

Instead, Petitioner seeks fact-bound error correction,

asking the Court to review “[w]hether the court of

appeals erred in allowing a Bivens remedy in this

case.” Pet. i (emphasis added). This Court does not

2 The court of appeals also rejected Agent Henning’s reliance on

the FTCA, pointing to this Court’s recent reaffirmation that

“Congress made clear [in the FTCA] that it was not attempting

to abrogate Bivens.” Pet. App. 17a (quoting Hernandez, 589 U.S.

at 749 n.9). Because “[t]his case does not present a new Bivens

context,” the court of appeals concluded, the FTCA “does not

come into play.” Pet. App. 17a.

9

generally grant plenary review to decide whether a

court of appeals has misapplied a settled legal

standard “in this case.” There is no good reason to

make an exception to review the Seventh Circuit’s

application of this Court’s established Bivens

framework to allegations that a federal narcotics

officer making an arrest punched an individual in the

face without provocation.

In order to claim that the Seventh Circuit’s

unexceptional decision warrants review, Petitioner

manufactures two circuit splits concerning the precise

scope of the recognized Bivens context for

unconstitutional searches and seizures. The first

posits a difference in the treatment of searches and

seizures outside the home. In some circuits, according

to Petitioner, a search or seizure outside the home is

a meaningful difference that establishes a new Bivens

context, whereas in other circuits, a search or seizure

outside the home is not a meaningful Bivens

difference. The second purported split concerns the

treatment of searches and seizures pursuant to a

warrant. In some circuits, according to Petitioner, the

existence of a warrant is a meaningful difference that

establishes a new Bivens context, whereas in other

circuits, the existence of a warrant is not a meaningful

Bivens difference.

None of this accurately describes how the courts

of appeals analyzed the Bivens claims before them.

Rather than applying automatic, per se rules, the

courts of appeals have weighed multiple factual

considerations and applied this Court’s Bivens

framework to the cases as a whole. Indeed, the

Seventh Circuit specifically addressed some of the key

10

cases that Petitioner now claims give rise to a split,

without suggesting any disagreement with them.

Only by overreading or misidentifying the holdings of

various decisions can Petitioner assert that “square

and acknowledged circuit conflicts” have emerged.

Pet. 4.

In painting with such a broad brush, Petitioner

misses the narrowness of this case, involving only

“run-of-the-mill allegations of excessive force during

an arrest.” Pet. App. 18a. In a Bivens case focused on

an unconstitutional search, it might or might not be a

meaningful difference whether the search involved

the home, an automobile, a government building, or

some other public place. Similarly, a claim that a

search is unconstitutional because of improper

conduct in procuring a warrant may or may not be

meaningfully different from a claim that a search is

unconstitutional because there was no warrant. But

no court of appeals has endorsed Petitioner’s position

for why no cause of action is available “in this case,”

Pet. i, i.e., that there is something meaningfully

different from Bivens where a federal narcotics officer

punches in the face someone who is not resisting

arrest, just because the officer happened to conduct

his unprovoked assault in a hotel lobby and while

holding a warrant.

A. There Is No Circuit Split Regarding

Whether Arrests Outside the Home

Categorically Present a New Bivens

Context.

Petitioner’s claim of a “home / not-home” circuit

split is not original. Just this past Term, two Park

11

Police officers asked this Court to review “[w]hether a

cause of action exists under Bivens for Fourth

Amendment claims not involving a search or arrest

inside a home.” Petition for Writ of Certiorari at i,

Ferreyra v. Hicks, No. 23-324, 2023 WL 6367653, at *i

(Sept. 22, 2023). The basis of that request was an

assertion that “[t]he circuits are split 4-2 over whether

Bivens extends to searches and seizures outside of a

home.” Id. at 14. This Court denied review. Ferreyra

v. Hicks, 144 S. Ct. 555 (2024). No split warranting

review existed then, and none exists now.

1. Petitioner suggests that the First, Fifth,

Eighth, and Ninth Circuits have adopted a categorical

rule that when a search or seizure occurs outside the

home, it necessarily arises in a new Bivens context.

Pet. 4. But none of these cases in fact announce any

such categorial rule. Instead, in each case, the

location of the conduct was only one of a collection of

factors mentioned by the court—and in none of these

cases did the court hold that any arrest outside the

home categorically establishes a new Bivens context,

much less that a use of excessive force during arrest

outside of the home is necessarily a new Bivens

context.

First Circuit: Emblematic of Petitioner’s error is

his misreading of Quinones-Pimentel v. Cannon, 85

F.4th 63 (1st Cir. 2023). In that case, an internet and

network communications company sued an array of

defendants, including federal prosecutors and

employees of rival companies. Id. at 67. They alleged

that the defendants violated the Fourth Amendment

by searching the company’s corporate offices and data

center in a manner that exceeded the scope of a search

12

warrant, exposing sensitive trade secrets and

intellectual property. Id. at 67–68. The First Circuit

held that “the differences in the challenged conduct—

—including the issuance of a warrant, which ran

against a business—and in the defendants—including

the prosecutors and private, corporate employees—

suffice (when viewed collectively) to show that this

case differs meaningfully from Bivens and therefore

presents a new context.” Id. at 71.

The focus of the First Circuit’s holding is not

changed by a passing reference to the fact that “no one

was handcuffed or arrested and no one’s home nor

their person (naked or otherwise) was searched . . . .”

Id.. That observation, limited to whether someone’s

“home . . . was searched,” says nothing about whether

it matters to an excessive force claim that an arresting

officer engages in unprovoked violence in a home or

outside it. But even more to the point, the court

expressly limited itself to holding that “all the

differences identified above, when viewed in the

aggregate,” establish a new context. Id. at 71 n.5

(emphasis added).

Petitioner flatly misreads

Quinones-Pimentel by suggesting that it holds that

any claim of excessive force outside of a home

necessarily constitutes a new Bivens context.

Fifth Circuit: The trio of Fifth Circuit cases that

Petitioner raises—Oliva v. Nivar, 973 F.3d 438 (5th

Cir. 2020); Byrd v. Lamb, 990 F.3d 879 (5th Cir. 2021);

and Cantú v. Moody, 933 F.3d 414 (5th Cir. 2019)—

similarly found new Bivens contexts based on multiple

distinctions from the facts in Bivens, without

articulating a bright-line rule categorically excluding

13

any unconstitutional search or seizure outside of a

home.

In Oliva, a visitor to a Veteran’s Affairs (“VA”)

hospital sued VA police officers, alleging that the

officers violated his Fourth Amendment rights. The

plaintiff had attempted to enter the facility but

refused to show identification or place all of his items

into an inspection bin, leading to a physical

confrontation. Oliva, 973 F.3d at 440–41. The Fifth

Circuit found a new context because, comparing the

case to Bivens, “Oliva’s ‘claim involves different

conduct by different officers from a different agency.’”

Id. at 443 (quoting Cantú, 933 F.3d at 423). Among

several other differences, the court of appeals briefly

noted that “[t]his case arose in a government hospital,

not a private home.” Id. at 442–43. But the Fifth

Circuit did not clearly hold that this difference was

meaningful on its own. And it certainly did not hold

that any location outside the home establishes a new

context. The most that Oliva could be read to suggest

is that searches and seizures in “a government

hospital” present a new context. Id. at 443.

In Byrd, the former romantic partner of the son of

a Department of Homeland Security agent sued the

agent, alleging that the agent brandished a gun,

verbally assaulted him, and facilitated an unlawful

arrest by the local police department. Byrd, 990 F.3d

880–81. As in Oliva, the Fifth Circuit listed a number

of distinctions from Bivens, including not only that the

conduct took place “in a parking lot,” but also that it

arose from suspicions that the plaintiff was

“harassing and stalking [the agent’s] son, not a

narcotics investigation.” Id. at 882. As with Oliva,

14

Byrd at most suggests that “prevent[ing] [the

plaintiff] from leaving the parking lot” was a new

context, id.—not that any search or seizure outside

the home is categorically a new context.

In Cantú, “forty-five law enforcement officers

descended on [a] vehicle” and searched a cooler sitting

on the passenger seat, which contained two kilograms

of drugs. 933 F.3d at 417. Although Cantú claimed

that he “never touched the cooler,” “two federal agents

swore otherwise in affidavits,” and that triggered

Cantú’s Fourth Amendment claim: that the officers

“falsified affidavits” “to induce prosecutors to charge

him.” Id. at 423. The court began by noting that

Cantú did not “allege the officers entered his home

without a warrant or violated his rights of privacy,”

but then proceeded to discuss the stark differences

from Bivens in a case involving “falsified affidavits”

and a “connection between the officers’ conduct and

the injury [that] involves intellectual leaps that a

textbook forcible seizure never does.” Id. Neither

Cantú nor any other Fifth Circuit case holds that

“run-of-the-mill allegations of excessive force during

an arrest” would present a new context based only on

taking place outside of a home. Pet. App. 12a.

Eighth Circuit: The Eighth Circuit’s decision in

Ahmed v. Weyker concerned an interstate criminal

investigation that was “plagued with problems.” 984

F.3d 564, 565 (8th Cir. 2020). The plaintiff alleged

that a deputized United State Marshal knowingly and

falsely accused the plaintiff of intimidating a federal

witness and fabricated statements in a criminal

complaint and sworn affidavit. Id. at 566. The court

of appeals concluded that the case differed from

15

Bivens in “four ways”: the conduct being challenged,

the officer’s alleged role in the arrest, the attenuated

causal chain, and the need to examine the officer’s

state of mind. Id. at 568–70. In the course of

discussing “the sorts of actions being challenged,” the

court mentioned that Bivens involved “an invasion

into a home” as a contrast with “manufacturing

evidence and lying,” which are “simply not the same

as the physical invasions that were at the heart of

Bivens.” Id. at 569. Nowhere did the court suggest

that a claim of excessive force in a routine lawenforcement context—which is plainly a “physical

invasion” of the victim’s bodily autonomy—would fall

outside of “the heartland of Bivens.” Pet. App. 13a.

Ninth Circuit: Mejia v. Miller similarly involved a

number of distinctions from the original Bivens

context. 61 F.4th 663 (9th Cir. 2022). That case

involved a “high-speed chase in Joshua Tree National

Park,” culminating in gunshots fired by a “senior law

enforcement officer” in the Bureau of Land

Management (“BLM”) who had been called in to

“assist.” Id. at 665, 668. The Ninth Circuit noted the

absence of Supreme Court decisions involving a

“Bivens excessive force claim against a BLM officer,”

and that “none of the events in question occurred in or

near Mejia’s home,” but instead “occurred on public

lands managed by BLM and the National Park

Service . . . .” Id. at 668. And as part of its step-two

analysis, the Ninth Circuit elaborated on how such a

claim could have “‘systemwide consequences’ for

BLM’s mandate to maintain order on federal lands.”

Id. at (quoting Abbasi, 582 U.S. at 136). Reading

Mejia as a whole, the court did not articulate a brightline rule against Bivens claims outside the home. Id.

16

at 668 (emphasis added). Rather, the court focused on

the specific location at issue (a national park) and the

unique mandate of the federal agency charged with

maintaining order in that location.

2. None of the cases discussed above holds that

any Fourth Amendment search-or-seizure claim

arising outside a home is categorically a new Bivens

context. There is accordingly nothing to the contrary

in either the decision below or in the Fourth and

Tenth Circuit cases that Petitioner characterizes as

being on the opposite side of the purported split.

In Hicks v. Ferreyra, the Fourth Circuit addressed

a “seizure[] in violation of the Fourth Amendment

committed by federal ‘line’ officers conducting routine

police work,” finding no new context in a traffic stop.

64 F.4th 156, 162 (4th Cir. 2023). The fact that this

seizure took place outside the home was apparently

seen as unexceptional before the Fourth Circuit,

meriting only a brief mention in a footnote in the

court’s opinion. See id. at 167 n.2.

Petitioner’s only other case, aside from the

decision below, is the Tenth Circuit’s recent decision

in Logsdon v. U.S. Marshal Service, 91 F.4th 1352

(10th Cir. 2024). There, however, the court of appeals

declined to recognize a Bivens remedy, because the

case involved “a new category of defendant,”

specifically agents of the U.S. Marshal Service. Id. at

1358. Before reaching that dispositive factor, the

court noted that it would give “little weight” to the

“location of the arrest” outside of the plaintiff’s

friend’s home. Id. at 1357.

17

In dicta, Logsdon discussed Mejia and Byrd,

which it perceived as indicating that “a new context

arises when the violation does not occur in the

plaintiff’s home.” Id. But the Tenth Circuit expressly

declined to “dwell” on these perceived “differences,”

because “there are other sufficient grounds for holding

that Mr. Logsdon has no claim under Bivens in this

case.” Id. at 1358. Had the Tenth Circuit needed to

dwell on this question further, it might have reached

the conclusion that Mejia and Byrd do not adopt any

such categorical rule, for the reasons explained above.

Supra pp. 13–16. In any event, since Logsdon held

that there were “sufficient” alternative reasons for

denying a Bivens remedy, its discussion of the location

of the arrest was dicta. Id. at 1358. It is at a

minimum premature to say that there is any

established rule in the Tenth Circuit on this point.

The Seventh Circuit’s opinion in the present case

also confirms the lack of any circuit split. Far from

disagreeing with any other circuit’s conclusions, the

Seventh Circuit specifically discussed some of the key

cases invoked by Petitioner. The court of appeals

favorably cited the Ninth Circuit’s decision in Mejia,

interpreting that decision as finding a “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.’” Pet. App. 14a (quoting Mejia, 61 F.4th at

668–69). And it devoted a paragraph to Petitioner’s

reliance on the Fifth Circuit’s decision in Oliva. Pet.

App. 18a. Distinguishing Oliva, the Seventh Circuit

explained how “[t]he threat of a damages award

against VA security officers could cause more lax

enforcement of safety protocols in a government

18

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.” Id.

3. The lack of a true circuit split is further

confirmed by the novel arguments Petitioner presents

here. For instance, Petitioner posits that arrests

outside the home present an unusual “risk to

bystanders,” that “[t]he home is a place of special

solicitude,” and that these are the reasons the

difference between an arrest in the home and one in

any possible location outside the home is meaningful.

Pet. 17.

But tellingly, not one of Petitioner’s

authorities adopted this reasoning as the basis for any

per se rule.

Instead, Petitioner grounds his claim of a circuit

split on plucking out single sentences from opinions

contrasting a particular location (for example, a

government hospital, a parking lot, or national park

lands) with the facts of Bivens. Had any court of

appeals intended to articulate a bright-line rule that

only Fourth Amendment violations inside a home fall

within the recognized Bivens context, it would

presumably have discussed the reasons making that

distinction “meaningful.” Abbasi, 582 U.S. at 139–40.

Only because no court of appeals has done so has

Petitioner found it necessary to offer, for the first time

in his petition to this Court, the novel argument that

bystander risk makes the home / not-home distinction

meaningful. That theory is wrong, see infra pp. 25–

26, but more important for present purposes is its

novelty, underscoring that no court of appeals decision

19

that Petitioner raises has adopted the rule that he

claims warrants review.

B. There Is No Circuit Split Regarding

Whether an Excessive Force Claim

Presents a New Bivens Context When the

Arrest Was Conducted Pursuant to a

Warrant.

Petitioner’s purported second circuit split, over

“whether a warrant makes the context new,” Pet. 20,

is equally non-existent. In support of this alleged

split, Petitioner identifies fewer cases—most of which

are unpublished dispositions that do not set any

circuit precedent. Further, Petitioner continues to

lump together any search-or-seizure case. Even if the

presence of a warrant could be considered a

meaningful difference with respect to certain Fourth

Amendment claims—ones focused, for instance, on

the lawfulness of a search—it does not follow that the

presence of a warrant would have any bearing on

“run-of-the-mill allegations of excessive force during

an arrest.” Pet. App. 18a; see also infra p. 27. That is

the only relevant question here, and there is no circuit

split on that question.

1. Petitioner asserts that the First, Sixth, and

Ninth Circuits “all agree” that the mere existence of a

warrant gives rise to a new Bivens context. Pet. 20.

But the only published decision Petitioner cites does

not come close to establishing the categorical rule

Petitioner alleges. The First Circuit’s QuinonesPimentel decision, described above, relied on a

number of factual differences from Bivens “in the

aggregate.” 85 F. 4th at 71 n.5. Only one of those

20

differences involved the presence of a warrant, with

the First Circuit pointing out that “there was a

warrant, which was issued against a business, not

against an individual or the individual’s home.” Id. at

71. It is far from clear that the First Circuit would

have regarded a warrant “against an individual or the

individual’s home” as a meaningful difference when

considered in the “aggregate” with other differences—

much less if that were the only difference. Indeed, the

court expressly declined to decide whether any of the

differences it identified would “individually . . . suffice

to make [the case] a new context.” Id.

Even more fundamentally, Quinones-Pimentel

involved no allegations of excessive force. In fact, the

First Circuit pointed to the allegations of “excessive

force” in Bivens to distinguish the case before it, which

“involve[d] Fourth Amendment claims against

prosecutors, federal line-level investigative officers,

and private, corporate employees acting under color of

federal law, who are alleged to have jointly fabricated

evidence in support of warrants to search a business

investigated for copyright and money laundering

violations, seized physical evidence (which was

returned), and twice exceeded the scope of those

warrants.” Id. It may be reasonable to conclude that

a claim of fabricating evidence in order to obtain a

warrant to search a business, and then exceeding the

scope of that warrant, establishes a meaningful

difference from Bivens. Such a conclusion would say

nothing, however, about an excessive force claim,

where the amount of force that can be used in effecting

an arrest has no necessary connection to the presence

or absence of a warrant. See infra p. 27.

21

Without the First Circuit’s inapposite opinion,

Petitioner is left with two non-binding, unpublished

dispositions. And at least one of them has the same

problem for Petitioner as Quinones-Pimentel: it does

not say anything about whether the presence of a

warrant is meaningful for an excessive force claim.

The Ninth Circuit’s bare-bones memorandum

disposition in Massaquoi v. FBI does not even discuss

the nature of the alleged Fourth Amendment

violation. See No. 22-55448, 2023 WL 5426738, at *2

(9th Cir. Aug. 23, 2023). As summarized by the

district court, however, Massaquoi was not an

excessive force case. Rather, the plaintiff complained

that the FBI “executed a search warrant at Plaintiff’s

home, and seized certain of Plaintiff’s belongings.”

Massaquoi v. FBI, No. 2:21-cv-08569-SVW, 2022 WL

2234961, at *1 (C.D. Cal. Mar. 15, 2022).

The Sixth Circuit’s summary order in Cain v.

Rinehart is similarly unpublished, and, therefore, sets

no circuit precedent. No. 22-1983, 2023 WL 6439438,

at *3–4 (6th Cir. July 25, 2023); see Graiser v.

Visionworks of Am., Inc., 819 F.3d 277, 283 (6th Cir.

2016) (unpublished decisions “not binding precedent”

in the Sixth Circuit). And that case did not involve

the presence of a warrant as the only asserted

difference from Bivens, but also involved a new

category of defendant. Cain, 2023 WL 6439438, at *3–

4.

2. On the other side of the purported split,

Petitioner points to just two cases—the decision below

and Logsdon. Both of these decisions addressed the

relevance of a warrant in the excessive-force context.

For example, the Seventh Circuit emphasized that

22

this case involved “run-of-the-mill allegations of

excessive force during an arrest” by a line-level officer.

Pet. App. 18a. And in Logsdon, where the Tenth

Circuit gave the presence of a warrant “little weight”

(before declining to “dwell” on the issue and finding a

new Bivens context for other reasons, see supra p. 17),

the allegations likewise involved excessive force. 91

F.4th at 1356.

3. As with his first alleged split, Petitioner’s claim

of a “warrant / no-warrant” split is undermined by the

absence of discussion of his legal theory from the

decisions on which he relies. To argue that the

presence of a warrant is a categorically meaningful

difference, Petitioner contends that officers with a

warrant operate under a different “legal mandate”

because a warrant is a court order to conduct a search

or seizure. Pet. 22–23. But just like Petitioner’s

argument about bystander risk, supra pp. 18–19, none

of the court of appeals decisions on which he relies

adopts his construction of “legal mandate” as the

reason why the presence of a warrant is always a

meaningful difference. This again underscores the

illusory nature of the split Petitioner alleges.3

3 The Sixth Circuit’s unpublished order in Cain quotes two

unpublished district court decisions linking the issuance of a

warrant to the officer’s “legal mandate.” 2023 WL 6439438, at

*3 (citations omitted). Although the Sixth Circuit order cited

those decisions as “cases [that] have found that the existence of

a warrant creates a new context for Bivens purposes,” it did not

appear to adopt the “legal mandate” rationale as its own. Id.

23

II. The Decision Below Is Correct.

1. The Seventh Circuit correctly identified and

faithfully applied the Bivens framework laid out in

this Court’s recent cases. It recognized this Court’s

admonition that expanding Bivens is a “disfavored

judicial activity,” Pet. App. 7a (quoting Abbasi, 582

U.S. at 135), and that there is only a “narrow . . . path

. . . for a Bivens claim to proceed,” because “creating

new causes of action is the prerogative of Congress,

not the federal courts,” Pet. App. 15a. At the same

time, the court of appeals correctly recognized this

Court’s affirmation of the “continued force . . . of

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

arose.” Pet. App. 15 (quoting Abbasi, 582 U.S. at 134).

The Seventh Circuit thus applied this Court’s twostep framework, and in particular focused on the first

step, asking whether “[Mr.] Snowden’s Bivens claim

ar[ose]

in

a

‘new

context’”

that

was

“different in a meaningful way from previous Bivens

cases’ decided by the Supreme Court.” Pet. App. 8a

(quoting Abbasi, 582 U.S. at 139).

Adhering closely to the considerations identified

in Abbasi and the way the Court has applied the

standard in other cases, the Seventh Circuit

concluded that there were no meaningful differences

“to suggest that [Mr. Snowden] should not be able to

pursue this excessive force claim.” Pet. App. 15a.

Both the narcotics agents in Bivens and Petitioner

were line-level officers operating in a “common and

recurrent sphere of law enforcement.” See Abbasi, 582

U.S. at 134. Indeed, Petitioner operates under

precisely the same legal mandate as the defendants in

Bivens: the enforcement of federal drug laws. Pet.

24

App. 15a. Both Mr. Snowden and the plaintiff in

Bivens sought damages for violations of their Fourth

Amendment right to be free of unreasonable force

during an arrest. Pet. App. 15a–16a. And as the court

of appeals correctly noted, the legal landscape

governing such excessive-force claims has been “well

settled” for decades. Pet. App. 15a (collecting cases

from the Supreme Court and Seventh Circuit). In

short, this case arose in the “heartland of Bivens”

because it involved “run-of-the-mill allegations of

excessive force during an arrest” by a line-level

narcotics officer. Pet. App. 13a, 18a.

2. Neither the location of Petitioner’s unprovoked

assault on Mr. Snowden, nor the fact that Petitioner

held a warrant when he committed that assault, is a

meaningful difference from Bivens.

Location: This Court has never suggested that the

amount of force that is reasonable in effecting an

arrest varies depending on whether the arrest is

conducted in someone’s home. Instead, the degree of

force that is reasonable turns on circumstances such

as “the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the

officers or others, and whether he is actively resisting

arrest or attempting to evade arrest by flight.”

Graham v. Connor, 490 U.S. 386, 396 (1989).

Petitioner thus misses the point by noting

different ways in which Fourth Amendment

jurisprudence has taken location into account. It is

true enough that the “special solicitude” of the home

has supported “a firm line at the entrance to the

house” for purposes of whether a warrant is

25

presumptively required in some circumstances. Pet.

17 (quoting Payton v. New York, 445 U.S. 573, 590

(1980)).

Tellingly, however, Petitioner has not

identified a single case suggesting that this “special

solicitude” means that arresting agents are disabled

from using the same amount of force when conducting

an arrest inside a home as outside it.

Nor does any lack of special solicitude for a

Quality Inn lobby make Mr. Snowden reasonably

susceptible to being punched in the face despite not

resisting arrest. The home may be a “bulwark”

against “be[ing] approached by strangers on the

street; rub[bing] shoulders on the subway; or

bump[ing] into others at the grocery store.” Pet. 17.

But the Fourth Amendment is a bulwark against

violent, unprovoked assault by a line-level law

enforcement officer, and that protection is no lower in

a hotel lobby than it is in a home.

Nor does an excessive force claim outside the

home present a meaningful difference from Bivens on

the basis of creating “dramatically different risks.”

Pet. 18.

In support of this novel proposition,

Petitioner emphasizes that “[c]onfrontations with

suspects in public locations can pose immediate

threats to bystanders.” Pet. 18. Yet he ignores the

other side of the coin: “[t]he risk of danger in the

context of an arrest in the home is as great as, if not

greater than, it is in an on-the-street or roadside

investigatory encounter.” Maryland v. Buie, 494 U.S.

325, 333 (1990). That is why it is lawful for officers to

perform protective sweeps when effectuating in-home

arrests, see id., and why it can be necessary for officers

to detain occupants of a residence to “minimize[] the

26

risk of harm to both officers and occupants,” Muehler

v. Mena, 544 U.S. 93, 100 (2005). Indeed, bystander

risks were present in Bivens itself, where federal

agents “manacled [Bivens] in front of his wife and

children, and threatened to arrest the entire family.”

Bivens, 403 U.S. at 389. The possible presence of

bystanders and associated risks is thus no difference

at all, much less a meaningful one, from Bivens.

Petitioner’s proposed rule also cannot be

reconciled with this Court’s approach in Egbert. The

arrest in Egbert involved allegations of an excessive

use of force outside of a home. Egbert, 596 U.S. at

486–90. If that alone were a “meaningful difference”

from Bivens, the Court had occasion to say so—or at

least note it as one of the factors giving rise to a new

context. Instead, Egbert discussed distinctions that

were actually meaningful, such as “the bordersecurity context” and the “national security” risks

presented. Id. at 494. There would have been no

reason to discuss such matters if Egbert could have

been resolved on the simple ground that the alleged

constitutional violation occurred just outside the

Smuggler’s Inn Lodge.

This is not to say that the location of an arrest, or

the risk to officers or bystanders involved, could never

be a meaningful difference. For instance, the nature

and degree of risk might create such a difference in

connection with a security screening in an airport, a

crowded stadium, or a government facility. But

Petitioner suggests that this Court should adopt a per

se rule that a Fourth amendment excessive force claim

is always outside the scope of Bivens with respect to

any arrest taking place anywhere but inside someone’s

27

home. There is no principled basis for such a rule.

Creating it would not be a matter of declining to

extend Bivens. It would dramatically erode the

“heartland of Bivens,” Pet. App. 13a, within the

“common and recurrent sphere of law enforcement” in

which it is “settled law.” Abbasi, 582 U.S. at 134.

Warrant: In arguing that the presence of a

warrant is a meaningful difference, Petitioner again

disregards this case’s “run-of-the-mill allegations of

excessive force during an arrest.” Pet. App. 18a. The

specific Fourth Amendment right that is implicated in

the decision below is the right to be free from an

excessive use of force that makes a seizure

unreasonable, not the separate and distinct right to be

free from a warrantless seizure. The presence of a

warrant may well have a bearing on whether it is

reasonable to arrest someone, but it has no necessary

connection to the degree of force that is appropriate in

carrying out that arrest. See Graham, 490 U.S. at

396. Nothing in a warrant authorizes an officer to

punch someone in the face multiple times, causing an

orbital fracture, when the individual is not resisting

arrest.

Unable to explain what relevance an arrest

warrant has to Mr. Snowden’s actual excessive force

claim, Petitioner contends that an arresting officer

acts pursuant to a different “legal mandate” when the

officer holds an arrest warrant. Pet. 22 (quoting

Abbasi, 582 U.S. at 139–40). But courts of appeals

applying Abbasi’s reference to “legal mandate” have

generally focused on the statutory responsibilities of

the agencies and officers in question. See, e.g., Mejia,

61 F.4th at 668 (“[M]ost federal agencies [do not] have

28

the same or similar legal mandates,” and the Bureau

of Land Management does not have the “same

mandate as agencies enforcing federal anti-narcotics

law[s].”); Tun-Cos v. Perrotte, 922 F.3d 514, 524 (4th

Cir. 2019) (officers were enforcing federal

immigration law rather than federal criminal laws),

cert. denied, 140 S. Ct. 2565 (2020).

This makes sense.

Agents of the Drug

Enforcement Administration or Federal Bureau of

Investigation typically operate in the “common and

recurrent sphere” of traditional law enforcement,

Abbasi, 582 U.S. at 134, whereas officers of agencies

such as the Border Patrol, the Transportation

Security Administration, and the Bureau of Land

Management perform more specialized roles. The

mere presence of a warrant, by contrast, does not

plausibly change anything relevant to the damages

remedy for the use of excessive force in Bivens.

Even taken at face value, Petitioner’s

characterization of the effect of a warrant on an

officer’s legal mandate is overstated. It is true that,

in the context of defining the boundaries of the

exclusionary rule, this Court has referred to a warrant

as creating an “obligation.” Utah v. Strieff, 579 U.S.

232, 240 (2016). But in other contexts the Court has

stressed that even where a legal instrument says a

law enforcement officer “shall arrest” someone, there

is no “truly” mandatory duty that overrides the “well

established tradition of police discretion.” Town of

Castle Rock v. Gonzales, 545 U.S. 748, 760–61 (2005).

The only reason an arrest warrant empowered

Petitioner to do anything is his ultimate statutory

29

authority. The relevant “statutory or other legal

mandate” here, Abbasi, 582 U.S. at 140, was

Petitioner’s responsibilities for enforcing federal drug

laws, including that he “may” “execute and serve . . .

arrest warrants,” and “make arrests without [a]

warrant” in certain circumstances. 21 U.S.C. § 878(a).

In other words, Petitioner’s legal mandate includes

making arrests with or without a warrant—just like

the Bureau of Narcotics agents that preceded him.

See Nat’l Archives, Records of the Drug Enforcement

Administration (DEA), https://perma.cc/Y4MX-LSS5

(archived June 16, 2024) (explaining that the DEA

succeeded the Bureau of Narcotics).

3. Petitioner also faults the Seventh Circuit for

failing to consider “alternative remedies,” though this

purported error has nothing to do with the circuit

splits Petitioner alleges. Pet. 25. In any event, it is

Petitioner,

not

the

Seventh

Circuit,

who

misunderstands the governing two-step Bivens

framework. The question of alternative remedies

generally arises at step two: when a case presents a

new context, the availability of alternative remedies

may be a reason counseling hesitation before creating

a new remedy. See Abbasi, 582 U.S. at 144–45

(discussing alternative remedies at step two); see also

Egbert, 596 U.S. at 497–98 (same). Indeed, in the

court of appeals, Petitioner raised his alternative

remedy argument only in the context of step two. Pet.

App. 16a n.4. It is therefore unsurprising, and

certainly not erroneous, that the Seventh Circuit did

not consider the FTCA relevant to its resolution of the

case at step one.

30

Petitioner’s discussion of the FTCA is equally

misguided. This Court has never retreated from its

holding that Congress was “crystal clear that [it]

views [the] FTCA and Bivens as parallel,

complementary causes of action.” Carlson v. Green,

446 U.S. 14, 20 (1980).

Indeed, although the

defendant in Egbert invoked the FTCA as an

alternative remedy, this Court notably did not rely on

it, focusing instead on Border Patrol grievance

mechanisms.

See Egbert, 596 U.S. at 524 n.7

(Sotomayor, J., concurring in part).

4. Finally, and again without connecting his

argument to any purported circuit split, Petitioner

accuses the Seventh Circuit of not addressing

“whether a legislature could think that some factual

or legal differences might alter ‘the costs and benefits

of implying a cause of action.’” Pet. 28 (quoting

Egbert, 596 U.S. at 491, 496). That is simply not a fair

reading of the court of appeals’ opinion, which

repeatedly recognized that the creation of a cause of

action “is primarily a legislative task,” and framed the

new context inquiry in a way that was consistent with

this understanding. Pet. App. 2a. What the court of

appeals referred to as a “familiar mode of judicial

reasoning,” Pet. 28 (quoting Pet. App. 12a), was “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.” Pet. App. 12a. That is a

perfectly accurate understanding of the judicial role

under this Court’s governing jurisprudence.

31

III. This Case Is a Poor Vehicle for Review.

Even if the issues raised by Petitioner merited

review, this case would be a poor vehicle for several

reasons.

First, this Court regularly denies certiorari where,

as here, the case remains in an “interlocutory

posture.” Seattle’s Union Gospel Misson v. Woods, 142

S. Ct. 1094 (2022) (statement of Alito, J., respecting

the denial of certiorari). That consideration applies

with particular force in light of Petitioner’s decision

not even to ask the Seventh Circuit to stay issuance of

its mandate. As a result, the case is proceeding into

discovery, potentially clarifying the issues beyond

where they stand at the pleadings stage.

Second, review of the question presented would be

complicated by Petitioner’s forfeiture of an argument

that is now central to his case. In order to claim that

arrests outside the home categorically present a new

context, Petitioner emphasizes the risk to bystanders

in such arrests. See e.g., Pet. 17–19. But Petitioner

did not raise that argument below, and thus forfeited

it. See United States v. Williams, 504 U.S. 36, 41

(1992) (“Our traditional rule . . . precludes a grant of

certiorari . . . when the question presented was not

pressed or passed upon below.”) (citation and internal

quotation marks omitted).

Third, to the extent this case implicates any issue

that might warrant further review in the future, the

Court would benefit from allowing such issues time to

percolate. This Court decided Egbert, its most recent

Bivens decision, only two years ago. Courts are just

beginning to apply that decision to different fact

32

patterns. Nor has any court of appeals adopted the

core theories Petitioner now presents to this Court,

relying on claims of bystander risks and the purported

mandatory nature of arrest warrants. Pet. 17–19, 22–

23. As this Court regularly reiterates, it is “a court of

review, not of first view.” Cutter v. Wilkinson, 544

U.S. 709, 718 n.7 (2005). Although Petitioner’s new

theories lack merit, the Court should at a minimum

wait for them to be vetted by the courts of appeals

before entertaining them.

Finally, Petitioner has not substantiated his

assertion that district courts are confronting Bivens

claims “with alarming frequency.” Pet. 29; see also

29–31 (presenting no relevant statistics). But if that

were true, there would be no shortage of vehicles

available for this Court to review these issues in the

future. As it stands now, there is no compelling

reason for the Court to so quickly wade back into the

Bivens doctrine to review a narrow decision in the

“heartland of Bivens” concerning “run-of-the-mill

allegations of excessive force during an arrest.” Pet.

App. 13a, 18a.

33

CONCLUSION

For the foregoing reasons, this Court should deny

the Petition.

Respectfully submitted,

Samuel Weiss

RIGHTS BEHIND BARS

416 Florida Ave., N.W.

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(202) 455-4399

David M. Zionts

Counsel of Record

Danial Randolph

Larissa Davis

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One CityCenter

850 Tenth Street, N.W.

Washington, DC 20001

dzionts@cov.com

(202) 662-5987

Counsel for Respondent

June 17, 2024