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. A recent decision by the Fourth Circuit Court of Appeals illustrates the continued viability of Bivens in cases that are not "meaningfully different" from cases in which the Supreme Court has recognized a remedy. The plaintiff in Hicks v. Ferreyra, No. 22-1339, 2023 U.S. App. LEXIS 7428 (4th Cir. Mar. 29, 2023), was an African American U.S. Secret Service agent who was waiting alongside a parkway under the jurisdiction of the U.S. Park Police ("USPP"), waiting to join a motorcade for the Secretary of the Department of Homeland Security. He was stopped by a white USPP officer (Officer 1), ostensibly for a "welfare check." Upon noticing a holstered gun on the front passenger seat of the plaintiff's vehicle, Officer 1 became agitated, ordered the plaintiff not to reach for his gun, and swore at him. The plaintiff explained who he was and why he was waiting on the side of the parkway and handed Officer 1 his credentials. Rather than releasing the plaintiff after confirming his identity, Officer 1 called for back-up, which arrived in the form of Officer 2, another white USPP officer (Officer 2). Even though he knew that the plaintiff was not a criminal suspect, Officer 2 interrogated the plaintiff. Both officers then detained the plaintiff for about an hour, claiming that it was USPP policy to wait for a supervisor to arrive at the scene before releasing an individual in possession of a weapon. (In a special interrogatory, the jury determined there was no such policy.) Moments after his release, Officer 2 stopped the plaintiff's vehicle again, allegedly because he was swerving and talking on his cell phone, but then released him without issuing a ticket. Id. at *3-6. For the first time in his career, the plaintiff missed an assignment. Id. at *32.
The Fourth Circuit had no trouble in affirming the decision of the district court that this case did not present a new Bivens context. Although the plaintiff was not arrested or subjected to excessive force and his home was not searched, he, like Bivens, suffered a warrantless search by line officers performing routine criminal law enforcement duties. Id. at *9-19. The court distinguished this situation from Annappareddy v. Pascale, 996 F.3d 120 (4th Cir. 2021), a case in which the Fourth Circuit had rejected the plaintiff's assertion of a Bivens claim under the theory that the Fourth Amendment was violated when a corporate office was searched pursuant to a warrant allegedly issued without probable cause. The Fourth Amendment claim in Annappareddy implicated prosecutorial judgment, a matter not at issue in Bivens or in Hicks. Hicks, 2023 U.S. App. LEXIS 7428, at *15-16. Because the facts in Hicks did not present a new Bivens context, it was not necessary to address the second step identified in Abbasi. Id. at *14.
Following its discussion of Bivens, the court also quickly, but thoughtfully, disposed of the officers' qualified immunity argument. The court stated, "the question before us is whether it was clearly established in July 2015 that, after a lawfully initiated traffic stop, an officer could continue to detain an individual, and detain that individual a second time, after the officer's suspicion of a possible crime had been resolved in the detainee's favor and the officer lacked any new basis to justify the detention." In spite of the absence of a case on all fours with the facts in Hicks, the court easily found that settled law gave the officers fair warning that their actions violated the plaintiff's Fourth Amendment rights by extending the time of the first stop and by executing the second stop. Id. at *24-25.
The court rejected the officers' argument that the jury was improperly influenced by evidence that the federal government would indemnify them for any damages awards against them because the district court had allowed plaintiff's counsel to present that evidence in rebuttal after the officers' attorney argued—falsely—in closing that the plaintiff "ultimately is seeking to put a vacuum cleaner up to [the officers'] bank account[s]." Id. at *26-27 (brackets in original). Finally, the court upheld the compensatory damages award because the plaintiff established he had suffered emotional distress as a result of the constitutional violation through his own testimony and that of a corroborating witness. Id. at *37. The punitive damages award was appropriate because the plaintiff established that the officers acted with malice and the amount of punitive damages awarded against each officer was less than three times the amount of correlating compensatory damages. Id. at *40-41.
