Suzanne Bailey, Senior Attorney

            In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the U.S. Supreme Court recognized an implied right of action for damages by a victim of a constitutional violation by a federal agent against that federal agent in federal court. In that case, the plaintiff sought damages for a violation of his Fourth Amendment rights when federal narcotics agent conducted a warrantless search of his apartment, arrested him for alleged narcotics violations, and subjected him to excessive force by conducting a visual strip search. Since Bivens, the Supreme Court has recognized an implied right of action against a federal agent committing a constitutional violation in only two other cases, Davis v. Passman, 442 U.S. 228 (1979) (woman discharged from employment by U.S. Congressman a right of action, arising directly under Fifth Amendment due process clause, to recover damages for Congressman's alleged sex discrimination), and Carlson v. Green, 446 U.S. 14 (1980) (administratrix of deceased federal prisoner's estate had cause of action against federal prison officials for violation of deceased's Eighth Amendment right to be free from cruel and unusual punishment by failing to give him proper medical attention). More recently, in Ziglar v. Abbasi, 582 U.S. 120 (2017), the Court stated that recognizing implied causes of action was now a "disfavored judicial activity," noting its consistent refusal "to extend Bivens to any new context or new category of defendants." Id. at 135 (internal quotation marks omitted). Before implying a cause of action, courts must engage in a two-step inquiry: (1) determine whether the claim presents a new Bivens context not previously recognized by the Supreme Court and, if so, (2) determine whether there are special factors counseling judicial hesitation absent action from Congress. Id. at 136-140.

Fred Shackelford—Senior Attorney, National Legal Research Group

            In a case of apparent first impression, the Ninth Circuit Court of Appeals has decided when a cause of action in admiralty for wrongful death accrues. In Deem v. William Powell Co., 33 F.4th 554 (9th Cir. 2022), a shipyard machinist contracted mesothelioma while employed in repairing naval vessels. His illness was diagnosed on February 20, 2015, and he died on July 3, 2015. His wife filed suit within three years of his death but more than three years after the illness was diagnosed. The federal district court ruled that the claim was time-barred because the three-year statute of limitations began to run at the time of the diagnosis.

            The issue on appeal was succinctly stated: "When does a wrongful death claim accrue in a maritime case?" Id. at 559. To decide the question, the appellate court recognized that there is a fundamental distinction between survival actions and wrongful death actions under admiralty law. A survival action is for the benefit of the directly injured victim, while a wrongful death action benefits the decedent’s family members who are deprived of his presence when he dies.

John Stone—Senior Attorney, National Legal Research Group

            The Ninth Circuit Court of Appeals has held that assuming a California state statute prohibiting, with certain exceptions, the possession of large-capacity magazines holding more than 10 rounds of ammunition implicated the Second Amendment, the statute did not facially violate the Second Amendment. Under an intermediate scrutiny analysis, the court reasoned that the statute was a reasonable fit for an important government interest of reducing the devastating damage wrought by mass shootings. Because it outlawed no weapon, it interfered only minimally with the core right of self-defense of home and family, and it saved lives. Duncan v. Bonta, 19 F.4th 1087 (9th Cir. 2021). In so holding, the court reversed the decision of a federal district court that had granted a motion for summary judgment filed by the plaintiff gun owners. Duncan v. Becerra, 366 F. Supp. 3d 1131 (S.D. Cal. 2019).

            According to the Ninth Circuit in Bonta, California law allows owners of large-capacity magazines to modify them to accept 10 rounds or fewer. Owners also can sell their magazines to firearm dealers or remove them from the state. The law in question, California Penal Code § 32310, also provides several exceptions to the ban on large-capacity magazines, including possession by active or retired law enforcement officers, security guards for armored vehicles, and holders of special weapons permits.

Trish Sifka—Senior Attorney,  National Legal Research Group                                     

            In May 2021, the Eight h Circuit affirmed the denial of the City of Minneapolis’s and a police officer’s motion to dismiss dog owners’ unlawful search and seizure claim under 42 U.S.C. § 1983. LeMay v. Mays, 18 F.4th 283 (8th Cir. 2021). Plaintiffs Jennifer LeMay and Courtney Livingston owned two pit bulls named Ciroc and Rocko, which were service animals for members of the family. Id. at 285. Livingston had accidentally triggered the burglar alarm. Officers Michael Mays and Daniel Ledman responded to conduct a residence security check. Officer Ledman went to the front door and Officer Mays climbed over a six-foot fence surrounding the backyard. After encountering Ciroc in the yard, Officer Mays s hot him. The other dog, Rocko, walked from the front door near his owner after Ciroc was shot in th e yard. Then, Officer Mays shot Rocko several times. Plaintiffs alleged that neither dog approached Officer Mays in a threatening manner. Although the dogs were not killed, both were critically injured enough so they were no longer able to act as service dogs. “LeMay and Livingston sued Mays and the City of Minneapolis under 42 U.S.C. § 1983, alleging Mays unlawfully searched their home and seized their dogs in violation of the Fourth and Fourteenth Amendments of the United States Constitution and the City was liable under Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).” Id. at 286. The Monell claim was dismissed. However, the district court denied the government’s assertion that Officer Mays was entitled to qualified immunity against the unlawful search and seizure claim.

Jim Witt—Senior Attorney, National Legal Research Group

            Historical background has always played an important role in the development of case law under the U.S. Constitution. With the emergence of original-intent theory, history, especially the legal history of England, has become even more influential. This point is exemplified by the continuing questions that arise over the interpretation of the Second Amendment to the U.S. Constitution, "Keeping and Bearing Arms—A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. "

            The case law that has developed under the Second Amendment has largely focused on issues arising in the context of a state's right to raise and maintain a militia, with no U.S. Supreme Court decision dealing with the extent of an individual's right to bear arms. This changed in 2008, however, when Justice Antonin Scalia delivered the majority opinion in the 5-4 decision in District of Columbia v. Heller, 554 U.S. 570 (2008), in which the Supreme Court affirmed the right of an individual to keep arms in the home for self-defense.

Suzanne L. Bailey—Senior Attorney, National Legal Research Group

            It is well-established law that when a federal court reviews a federal agency's construction of a statute it administers, the court will look to whether Congress has addressed the precise question at issue. If the court determines that Congress has not directly addressed the issue, rather than imposing its own construction of the statute, the court will defer to the administrative agency's permissible construction of the statute. This standard of review is called Chevron deference, after the U.S. Supreme Court decision that articulated it. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). While application of Chevron deference frequently results in a decision upholding the agency's interpretation of its own statute, a recent decision from the Fourth Circuit Court of Appeals demonstrates that when the agency's interpretation is unreasonable, its interpretation will not prevail.

            In Amaya v. Rosen, No. 19-1619, 2021 WL 232554 (4th Cir. Jan. 25, 2021), a case that will be of interest to immigration practitioners specifically and administrative law practitioners generally—the Fourth Circuit held that even if Chevron deference applies to the Board of Immigration Appeals ("BIA") decisions interpreting provisions of the Immigration and Nationality Act ("INA") on a case-by-case basis, the BIA's interpretation cannot be sustained if it is unreasonable.

Jim Witt—Senior Attorney, National Legal Research Group

            While the as yet unexplained hoarding of toilet paper may be thought of as the light side of the coronavirus pandemic, on the not-so-light side is the hoarding of medical supplies, notably drugs and medical equipment such as masks and ventilators. The federal government has taken two steps in this regard—first, an Executive Order from the President, and, second, a warning from the Department of Justice.

            Executive Order No. 13910, 85 FR 17001, "Preventing Hoarding of Health and Medical Resources to Respond to the Spread of COVID-19" (Mar. 23, 2020), was announced under the authority of the Constitution and the Defense Production Act of 1950 (the "Act"), as amended (50 U.S.C. §§ 4501 et seq.).

Jason Holder—Senior Attorney, National Legal Research Group

       With the spread of COVID-19, most jurisdictions have declared a state of emergency and/or issued executive orders curtailing daily life. See, e.g., Cal. Exec. Order N-33-20 (Californians must "stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors"); D.C. Mayor’s Order 2020-054 (District residents must "stay in their residences except to perform essential activities, engage in essential business, provide or obtain government services, or engage in certain authorized recreational activities not involving close contact with other persons"); N.Y. Exec. Order 202.8 (nonessential businesses and nonprofit entities must "reduce the in-person workforce at any work locations by 100%"); Va. Exec. Order 53 (nonessential "brick and mortar retail business[es] . . . may continue to operate but must limit all in-person shopping to no more than 10 patrons per establishment"). State and federal courts have also been forced to alter procedures, extend deadlines, or even limit court access. An updated list of orders, see https://web.csg.org/covid19/executive-orders/. Court closures and restrictions can be found at https://www.law360.com/articles/1252836.

Trish Sifka, Senior Attorney, National Legal Research Group

            On December 20, 2019, President Trump signed the National Defense Authorization Act ("NDAA"), SB 1790, 133 Stat 1198, into law. This legislation included a substantial "crack" in the over 70-year-old, court-imposed Feres doctrine, which barred tort claims by military members against the United States for injuries incurred incident to service. Under this new provision in the NDAA, the Department of Defense ("DOD") can administratively receive, review, and settle tort claims filed by military members for personal injury or death caused by the negligent or wrongful act or omission of a DOD health-care provider. However, there are limitations. The injuries must not have been sustained in a combat zone. Claims are limited to medical malpractice claims against military medical personnel at military medical facilities. The provision also sets a two-year statute of limitations except for 2017 injuries that are filed in 2020.   Damages will be based on average federal court damages data for similar injuries. Claimants will be allowed to be represented by an attorney, but there is no judicial review.

Steve Friedman, Senior Attorney, National Legal Research Group

     In light of the COVID-19 pandemic, many aspects of our lives have been severely altered and restricted in the name of public health. The extent of the states' police power is currently being tested amid the COVID-19 pandemic, and one such legal battleground involves the freedom of religious practice.

     As long ago noted by the Supreme Court, "[t]he right to practice religion freely does not include liberty to expose the community . . . to communicable disease or the latter to ill health or death." Prince v. Massachusetts, 321 U.S. 158, 166‑67 (1944). As illustrated below, even the fundamental right to gather in worship can be somewhat restricted by the government (i.e., prohibiting in-person services), but even such restrictions have limits (i.e., cannot ban drive-in services).