Reply 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

————

REPLY FOR PETITIONER

————

EUGENE A. SOKOLOFF

MOLOLAMKEN LLP

300 North LaSalle St.

Chicago, IL 60654

(312) 450-6700

JEFFREY A. LAMKEN

Counsel of Record

LUCAS M. WALKER

KAYVON M. GHAYOUMI

MOLOLAMKEN LLP

The Watergate, Suite 500

600 New Hampshire Ave., N.W.

Washington, D.C. 20037

(202) 556-2000

jlamken@mololamken.com

Counsel for Petitioner

TABLE OF CONTENTS

Page

I.

The Circuits Are Divided ................................

3

A. The Circuits Are Divided Over

Whether Conduct Outside the

Home Presents a New Bivens

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

3

B. The Circuits Are Divided Over

Whether a Warrant Makes the

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

6

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

7

III. The Issues Are Recurring and

Important...........................................................

10

IV. This Case Is an Ideal Vehicle .........................

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

11

12

II.

(i)

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Ahmed v. Weyker,

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

4

Annappareddy v. Pascale,

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

6

Byrd v. Lamb,

990 F.3d 879 (5th Cir. 2021)............................... 4, 6

Cain v. Rinehart,

No. 22-1893, 2023 WL 6439438 (6th Cir.

July 25, 2023) ....................................................... 6, 7

Cantú v. Moody,

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

4

Carlson v. Green,

446 U.S. 14 (1980) ................................................ 10

Egbert v. Boule,

596 U.S. 482 (2022) .............................. 2, 4, 6-8, 10

Hicks v. Ferreyra,

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

5

Lebron v. Nat’l R.R. Passenger Corp.,

513 U.S. 374 (1995) .............................................. 12

Libman v. United States,

No. 23-55417, 2024 WL 2269271 (9th Cir.

May 20, 2024) .......................................................

7

Logsdon v. U.S. Marshal Serv.,

91 F.4th 1352 (10th Cir. 2024) ................. 1, 5, 6, 12

Maryland v. Buie,

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

9

Massaquoi v. FBI,

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

Aug. 23, 2023) .......................................................

7

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Mejia v. Miller,

61 F.4th 663 (9th Cir. 2023) ............................... 4, 6

Muehler v. Mena,

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

9

Oliva v. Nivar,

973 F.3d 438 (5th Cir. 2020)....................... 3, 4, 6, 7

Quinones-Pimentel v. Cannon,

85 F.4th 63 (1st Cir. 2023).................................. 4, 7

Utah v. Strieff,

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

9

Ziglar v. Abbasi,

582 U.S. 120 (2017) ..............................

2, 4, 6, 7, 9

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

————

REPLY FOR PETITIONER

————

This case presents two entrenched, open, and acknowledged circuit conflicts over when putative Bivens claims

present a “new context.” In the decision below, the Seventh Circuit found no meaningful difference between the

warrantless, in-home search and seizure at issue in

Bivens, and a warranted arrest in a place open to the

public. As the Tenth Circuit has observed, many circuits

hold to the “contrary.” Logsdon v. U.S. Marshal Serv., 91

F.4th 1352, 1357 (10th Cir. 2024). Multiple “circuits have

said that a new Bivens context exists when federal officials

execute a valid warrant.” Ibid. Still others “have said that

a new context arises” where the asserted constitutional

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

Snowden’s effort to deny the conflict reimagines the

contrary authority as applying ad-hoc balancing tests that

2

“weig[h] multiple factual considerations.” Br.in.Opp.9.

That is fanciful. Those courts properly apply this Court’s

instruction that a case presents a new context so long as it

“is different in a meaningful way”—“even one”—from this

Court’s previous Bivens cases. Ziglar v. Abbasi, 582 U.S.

120, 139 (2017) (emphasis added); Egbert v. Boule, 596

U.S. 482, 496 (2022). One meaningful difference is all it

takes. And each of those cases identifies the warrant or

outside-the-home setting as rendering the context “new.”

Besides, if Snowden were right that lower courts misunderstand this Court’s precedents as calling for multifaceted balancing, that would only underscore the need for

review: Even a single meaningful difference should be

enough. And if lower courts need multifactor balancing to

decide whether the home or warrants are “meaningful” to

Fourth Amendment Bivens claims, the need for this

Court’s intervention is dire.

On the merits, Snowden repeats the Seventh Circuit’s

view that the differences between this case and Bivens—

outside the home vs. inside the home, warrant vs. no

warrant—are not “meaningful” to “ ‘run-of-the-mill allegations of excessive force.’ ”

Br.in.Opp.10 (quoting

Pet.App.18a). Snowden conflates the new-context inquiry

with whether courts might find differences relevant to the

claim’s merits. The new-context inquiry asks whether

there is any difference legislators might find relevant, as

a policy matter, when deciding whether to create a

damages remedy. Egbert, 596 U.S. at 491.

On that point, Snowden has little to say. He ignores

amicus Federal Law Enforcement Officers Association

(FLEOA), which explains why arrests outside the home

present risks to officers and bystanders that in-home arrests may not. Nor does he deny that warrants give officers authority that officers without warrants lack. Con-

3

gress plainly could think those differences counsel against

a damages remedy that might deter officers from carrying

out their duties in dangerous situations, pursuant to a

court order.

Snowden’s effort to paint the petition as seeking “factbound error correction,” Br.in.Opp.8, blinks reality. The

question here is whether the Seventh Circuit erred in

recognizing a Bivens remedy given two highly significant

circumstances: “the claim arises from an arrest made

outside the home,” and the defendant acted “pursuant to a

warrant.” Pet.i. The petition thus presents crisp legal

questions that have divided the circuits. Because of those

circuit conflicts, federal law-enforcement officers face

different risks of personal liability depending on where in

America they serve the American people.

I. THE CIRCUITS ARE DIVIDED

A. The Circuits Are Divided Over Whether Conduct

Outside the Home Presents a New Bivens Context

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

that claims arising outside the home present a new context

from the in-home conduct in Bivens. Pet.15-20. Snowden

urges that those courts merely consider location as “one of

a collection of factors” to be “weighed” in a multifactor

Bivens balancing test. Br.in.Opp.9, 11. But those decisions simply reflect that claims may differ from this

Court’s past Bivens cases in multiple meaningful ways—

each of which suffices to render the context “new.”

The claim in Oliva v. Nivar, 973 F.3d 438 (5th Cir.

2020), cert. denied, 141 S. Ct. 2669 (2021), thus differed

from Bivens in “several meaningful ways.” Id. at 442. But

the Fifth Circuit made clear that “ ‘the context is new’ ” so

long as a claim “ ‘is different in a meaningful way from [this

Court’s] previous Bivens cases.’ ” Ibid. (quoting Ziglar,

4

582 U.S. at 139) (emphasis added). And the first “meaningful” difference Oliva recognized was that the claim did

“not [arise in] a private home.” Id. at 442-443. The same

was true in Byrd v. Lamb, 990 F.3d 879, 882 (5th Cir.

2021), cert. denied, 142 S. Ct. 2850 (2022), where the claim

“arose in a parking lot, not a private home,” and Cantú v.

Moody, 933 F.3d 414, 423 (5th Cir. 2019), cert. denied, 141

S. Ct. 112 (2020), where the plaintiff did “not allege the

officers entered his home without a warrant.”

The contention that Oliva and Byrd suggest only that

“ ‘parking lot[s]’ ” or “ ‘government hospital[s]’ present a

new context,” Br.in.Opp.13-14, is frivolous. The court

found those locations made the context “new” because

they were “not a private home,” Oliva, 973 F.3d at 442443; Byrd, 990 F.3d at 882—like the hotel lobby here.

Snowden’s reimagining of other cases likewise fails.

That the defendant in Ahmed v. Weyker “did not enter a

home” was not a stray observation, but the very “[f]irst”

“meaningfu[l] differen[ce] from Bivens” the Eighth

Circuit identified. 984 F.3d 564, 568 (8th Cir. 2020). The

court was explicit that a new context exists whenever “one

or more meaningful differences exist.” Id. at 570 (emphasis added). In Mejia v. Miller, the Ninth Circuit found it

“[m]ore importan[t]” than anything else that, “unlike

Bivens, none of the events in question occurred in or near

Mejia’s home.” 61 F.4th 663, 668 (9th Cir. 2023). The

“first” difference in Quinones-Pimentel v. Cannon emphasized that “no one’s home” was involved. 85 F.4th 63,

71 (1st Cir. 2023).

Snowden’s theory that courts treat the new-context analysis as an amorphous balancing test, moreover, would

contradict this Court’s instruction that any meaningful

difference from Bivens counts. See Ziglar, 582 U.S. at

139; Egbert, 596 U.S. at 492, 496; see also Pet.App.13a

5

(recognizing that “ ‘even one’ ” meaningful difference suffices). If courts have transmogrified this Court’s straightforward inquiry into elaborate, multifactor balancing, that

would only underscore the need for review.

2. The Fourth and Seventh Circuits undisputedly

have rejected the argument that claims arising outside the

home present a new Bivens context. Pet.19. That alone

establishes a conflict.

Snowden denies “there is any established rule in the

Tenth Circuit” because Logsdon went on to find a new

context based on other differences. Br.in.Opp.17. But the

court considered those other differences only because it

“agree[d]” with the plaintiff (and the Seventh Circuit) that

the “location of the arrest” was irrelevant, 91 F.4th at

1357—further broadening the conflict.

Snowden observes (Br.in.Opp.1, 10-11) that this Court

denied review in Hicks v. Ferreyra, 64 F.4th 156 (4th Cir.

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

certiorari is no comment on the merits. And the denial in

Ferreyra is especially uninformative. The lead question

there was whether Bivens extends to “non-narcotics

officers.” Pet. in No. 23-324, at 8. That has nothing to do

with this case. While Ferreyra raised a secondary question concerning searches and seizures outside the home,

id. at 14, it was a poor vehicle. As Snowden admits, the

Fourth Circuit gave the issue “only a brief mention in a

footnote.” Br.in.Opp.16; see 64 F.4th at 167 n.2. By contrast, the decision below addressed the issue extensively.

Pet.App.17a-19a. Since the denial in Ferreyra, moreover,

the Tenth Circuit has expressly recognized the “substantial” “contrary” authority on both sides of the split,

Logsdon, 91 F.4th at 1357—dispelling any doubt of a

circuit conflict.

6

3. Snowden protests that some cases did not involve

excessive-force claims. Br.in.Opp.10-12, 19-21. But Oliva,

973 F.3d at 442, Byrd, 990 F.3d at 881, and Mejia, 61 F.4th

at 668, all did—and all found it meaningful that the claim

arose outside the home. A context may be new, moreover,

“[e]ven though the right and the mechanism of injury were

the same” as prior Bivens cases. Ziglar, 582 U.S. at 139.

Because “creating a cause of action is a legislative endeavor,” Egbert, 596 U.S. at 491, courts must ask whether

legislators could think any differences might alter the

advisability, from a policy perspective, of a cause of action.

In excessive-force cases, no less than others, legislators

plainly could think that officers acting outside the home or

with a warrant merit different treatment than officers who

breach the home’s sanctity or lack prior judicial authorization. See pp. 8-10, infra.

B. The Circuits Are Divided Over Whether a

Warrant Makes the Context New

Snowden does not deny that the Seventh and Tenth

Circuits have rejected the argument that warrants render

the context “new.” He cannot escape that multiple circuits

have held “to the contrary,” ruling that “a new Bivens context exists when federal officials execute a valid warrant.”

Logsdon, 91 F.4th at 1357. Thus, in Annappareddy v. Pascale, the Fourth Circuit ruled that “searches and a seizure

conducted with a warrant” present “a ‘new’ Bivens context” from the “warrantless searches and seizures” in

Bivens. 996 F.3d 120, 135-136 (4th Cir. 2021); see Pet.21

n.3. Snowden has no answer. He likewise ignores the

Third and Eighth Circuit cases cited by the petition.

Pet.21 n.3. That silence is telling.

The Sixth Circuit, too, has held that a claim presents a

“new context” where officers acted pursuant to a warrant.

Cain v. Rinehart, No. 22-1893, 2023 WL 6439438, at *3

7

(6th Cir. July 25, 2023). So has the Ninth Circuit, finding

a “new Bivens context because the agents had a search

warrant,” Massaquoi v. FBI, No. 22-55448, 2023 WL

5426738, at *1-2 (9th Cir. Aug. 23, 2023)—a view it recently

reaffirmed, Libman v. United States, No. 23-55417, 2024

WL 2269271, at *4 (9th Cir. May 20, 2024). That those

decisions were unpublished, Br.in.Opp.21, suggests only

that the courts did not think they were breaking new

ground. Contrary to Snowden’s assertion, Br.in.Opp.22

n.3, Cain specifically reasoned that the presence of a

“warrant” is a meaningful difference in the officer’s “ ‘legal

mandate.’ ” 2023 WL 6439438, at *3 (quoting Ziglar, 582

U.S. at 139-140). There is no reason to think the Sixth

Circuit would depart from that conclusion in another case. 1

Finally, the Fifth Circuit holds that “[v]irtually everything” other than the “warrantless” “strip-search” and

“manacling” in Bivens presents a “ ‘new context.’ ” Oliva,

973 F.3d at 442-443. Snowden cannot deny this case would

come out differently in that circuit. Pet.21-22.

II. THE DECISION BELOW IS WRONG

The decision below is on the wrong side of both circuit

splits. Whether law-enforcement officers have a warrant,

or act outside the sanctity of the home, fundamentally

alters the costs and benefits of subjecting them to personal

damages liability. Pet.17-19, 23-24; see FLEOA.Br.5-15.

1. Snowden’s argument that this case involves “ ‘runof-the-mill allegations of excessive force,’ ” Br.in.Opp.24,

27, repeats the Seventh Circuit’s error. That a claim

seems “ ‘conventional’ ” or arises in a “ ‘common and recur1

Snowden questions whether Quinones-Pimentel, 85 F.4th at 71,

would come out the same way if the warrant “were the only difference.” Br.in.Opp.20. But “even one” meaningful difference suffices.

Egbert, 596 U.S. at 496.

8

rent sphere of law enforcement’ ” is “not enough to support the judicial creation of a cause of action.” Egbert, 596

U.S. at 495.

Snowden argues that warrants and location have no

bearing on the merits of excessive-force claims like his.

Br.in.Opp.24-25, 27. That reproduces the Seventh Circuit’s error of approaching the new-context analysis as a

“mode of judicial reasoning” that asks whether courts

would find a difference legally significant when evaluating

the merits. Pet.App.12a (emphasis added); see Pet.28.

“[C]reating a cause of action is a legislative endeavor.”

Egbert, 596 U.S. at 491 (emphasis added). Courts thus

must consider the full “ ‘range of policy considerations

* * * a legislature would consider.’ ” Ibid. (emphasis

added). Even if a fact might matter little to courts deciding the merits of a claim, a legislature may find it relevant

to the “ ‘costs and benefits’ ” of a damages remedy, foreclosing Bivens’s judicial expansion. Id. at 496.

2. Congress plainly could find that extending Bivens

to warranted seizures, and seizures outside the home,

presents different cost-benefit calculus than the warrantless searches and seizures inside the home in Bivens itself.

Congress could agree the home has special sanctity as protection from all intrusions. Pet.17. And as FLEOA explains, officers operating in public settings face “ ‘significantly’ ” more “ ‘unknown variables’ ” and “ ‘increased

risk,’ ” FLEOA.Br.10, including heightened dangers to

and from bystanders. Pet.18-19. Congress reasonably

could think law-enforcement officers facing such risks

should not bear the additional threat of damages liability.

Snowden never answers FLEOA. He argues arrests in

the home are more dangerous, Br.in.Opp.25-26, noting

precedent allowing for precautions like protective sweeps.

But in-home arrests are safer than public ones precisely

9

because officers can conduct protective sweeps and detentions under Maryland v. Buie, 494 U.S. 325 (1990), and

Muehler v. Mena, 544 U.S. 93 (2005). FLEOA.Br.5. Officers planning in-home searches or seizures can run

“ ‘criminal checks on the people likely to be in the home,’ ”

learn of “ ‘registered weapons in the home,’ ” and “surveil”

the home. FLEOA.Br.10. Officers generally cannot run

sweeps for, conduct background checks on, or “detain,”

Br.in.Opp.25, everyone they might encounter in places

open to the public. Besides, if it were debatable whether

in-home or public arrests present more risks, that would

confirm that creating a private cause of action is a policy

judgment properly reserved to Congress.

3. Congress likewise could think warrants alter the

cost-benefit calculus. Warrants confer a “judicial mandate,” Utah v. Strieff, 579 U.S. 232, 240 (2016), that officers

acting on their own initiative lack. A warrant is “ ‘vetted

and validated by [a] judge,’ ” and “ ‘carries the weight of a

court order.’ ” FLEOA.Br.14. Legislators could readily

think that distinct “legal mandate,” Ziglar, 582 U.S. at

140—and the need to avoid deterring officers charged with

executing it—merits different treatment from the

warrantless search and seizure in Bivens.

Snowden insists that “legal mandate[s]” for Bivens purposes must reflect different “statutory responsibilities.”

Br.in.Opp.27-28. But the “easily satisfied” “new-context

inquiry” considers differences in an officer’s “statutory or

other legal mandate.” Ziglar, 582 U.S. at 140, 149 (emphasis added).

While Snowden quibbles that warrants are not “ ‘truly’

mandatory,” Br.in.Opp.28, nor are other “legal mandates”

this Court has considered in the Bivens arena, which

inevitably carry some degree of discretion. What matters

10

is the different authority an officer possesses, not whether

he is categorically obligated to exercise it.

4. Snowden nowhere denies that the Federal Tort

Claims Act offered him an alternative remedy unavailable

in Bivens, Pet.25-27, and that alternative remedial structures “independently foreclose” Bivens relief, Egbert, 596

U.S. at 497. He urges alternative remedies are irrelevant

unless courts find a “new context” at “step one.”

Br.in.Opp.29. But the inquiry boils down to “one question:

whether there is any rational reason (even one) to think

that Congress is better suited to ‘weigh the costs and benefits of allowing a damages action.’ ” 596 U.S. at 496 (emphasis added). That Congress has prescribed a different

remedy plainly counts, whatever “step” it is labeled. 2

Snowden protests that the FTCA does not displace Bivens, citing Carlson v. Green, 446 U.S. 14, 20 (1980). He

offers no response to this Court’s warning that Carlson

carries “little weight.” Egbert, 596 U.S. at 500-501; Pet.27.

III. THE ISSUES ARE RECURRING AND IMPORTANT

The issues are important and recurring. Pet.29-30.

And the impact on law enforcement is profound. As

FLEOA explains, officers deeply “feel the effects” of

inconsistent rules, making their work “ ‘more dangerous

for officers and the public.’ ” FLEOA.Br.16.

The problem is especially acute for officers—like Agent

Henning—who work across circuit boundaries. Pet.30;

FLEOA.Br.17. And in circuits that have yet to pick a side,

officers confront a bevy of inconsistent district-court deci-

2

Snowden erroneously asserts that Agent Henning raised the FTCA

below only at step two. Br.in.Opp.29. Agent Henning argued the

“context” is “new” because “Snowden was free to seek relief ” under

“the Federal Tort Claims Act.” C.A.Dkt.54 at 10.

11

sions. Pet.29-30 & nn.6-10. That uncertainty is untenable.

Snowden offers no response.

IV. THIS CASE IS AN IDEAL VEHICLE

This case squarely presents both circuit splits. Pet.3132. While Snowden argues the petition seeks “fact-bound

error correction” limited to “ ‘this case,’ ” Br.in.Opp.8, that

requires him to lop off most of the question presented.

The petition asks “[w]hether the court of appeals erred in

allowing a Bivens remedy in this case, where the claim

arises from an arrest made outside the home, in a place

open to the public, pursuant to a warrant.” Pet.i (emphasis added). That question presents legal issues—the relevance of warrants and the conduct’s location outside the

home—that have divided the circuits. It also encompasses

the possibility that “Bivens should be overruled altogether,” Pet.31: If Bivens remedies are never appropriate, the

court of appeals erred in allowing one here.

There is nothing “ ‘interlocutory,’ ” Br.in.Opp.31, about

the question presented. The district court granted judgment on the pleadings, holding the context was new; the

Seventh Circuit reversed, conclusively holding that neither an arrest’s setting outside the home nor a warrant creates a new Bivens context. Nor would discovery “clarif [y]

the issues.” Br.in.Opp.31. There is no dispute Snowden

was arrested pursuant to a warrant; the warrant was filed

with Agent Henning’s motion to dismiss. D.Ct.Dkt.24-1,

24-2. And there is no chance discovery will reveal the

arrest somehow occurred in Snowden’s home, rather than

a hotel lobby.

Snowden does not dispute Agent Henning raised the

outside-the-home and warrant distinctions below, and that

both lower courts addressed them. Pet.31. He contends

Agent Henning “forfeited” the observation that public settings involve heightened bystander risks. Br.in.Opp.31.

12

But “ ‘a party can make any argument in support of ’ ” an

issue “ ‘properly presented’ ” below. Lebron v. Nat’l R.R.

Passenger Corp., 513 U.S. 374, 379 (1995).

At least seven circuits have weighed in on the outsidethe-home conflict, and eight on the warrant conflict. Both

splits are openly acknowledged. Logsdon, 91 F.4th at

1357. There is no reason to wait.

CONCLUSION

The petition should be granted.

Respectfully submitted.

EUGENE A. SOKOLOFF

MOLOLAMKEN LLP

300 North LaSalle St.

Chicago, IL 60654

(312) 450-6700

JEFFREY A. LAMKEN

Counsel of Record

LUCAS M. WALKER

KAYVON M. GHAYOUMI

MOLOLAMKEN LLP

The Watergate, Suite 500

600 New Hampshire Ave., N.W.

Washington, D.C. 20037

(202) 556-2000

jlamken@mololamken.com

Counsel for Petitioner

JULY 2024