Police dog bite claims invalid under ‘Bivens’

A divided panel of the 4th U.S. Circuit of Court of Appeals has held that a claim against a fugitive task force for injuries suffered during execution of an arrest warrant must be dismissed because it extended Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics.

In its motion to dismiss, the defendants argued that the claim differed from claims allowed under Bivens. The district court disagreed, finding that the claim was similar enough to Bivens that its cause of action should apply.

Judge Julius N. Richardson held that the incident was tragic but did not fall within the original Bivens cause of action.

“This is a new context because the officers operated under a narrow and distinct statutory mandate and because they were executing a warrant,” the judge said. “And the Supreme Court has repeatedly counseled against extending Bivens beyond the original issue.”

Joined by Judge Allison Jones Rushing, Richardson reversed the denial of the defendants’ motion to dismiss.

In a dissenting opinion, Judge Roger L. Gregory said the “‘distinctions’ highlighted by the majority are insufficient to overcome the factors that heavily weigh in favor of finding there is no meaningful difference between the context of Bivens and that of this case.”

The 20-page opinion is Orellana v. Godec (VLW 025-2-294).

Attorneys for the parties involved did not respond to requests for comment.

Denied dismissal

Evy Orellana was seriously injured when a police tactical dog bit her leg while a fugitive task force executed an arrest warrant in Maryland for her boyfriend. Orellana sued the officers under Bivens, claiming that they had violated her Fourth Amendment rights with an unreasonable search and seizure.

The defendants moved to dismiss the claims, arguing that Bivens was unavailable in this situation. The District Court denied the motion, reasoning that the case was similar enough to Bivens that its cause of action should apply. The officers moved for interlocutory appeal.

Collateral order doctrine

Orders denying summary judgment or a motion to dismiss are normally not final and reviewable. However, an exception exists in the collateral order doctrine, under which courts treat some non-final orders as though they are final enough to create appellate jurisdiction.

“For this doctrine to apply, the order needs to ‘conclusively determine the question,’ ‘resolve an important issue completely separate from the merits of the action,’ and ‘be effectively unreviewable on appeal from a final judgment,’” Richardson explained.

Not only do denials of qualified immunity fall within the collateral order doctrine, the judge said it also provided appellate jurisdiction to review whether Bivens created the underlying cause of action.

“Affirmative defenses are relevant only where there is potential liability; a shield matters only when a sword exists,” Richardson said. “So the affirmative defense of qualified immunity directly implicates ‘the recognition of the entire cause of action’ under Bivens.”

Restrictive analysis

Typically lacking a built-in cause of action to allow for private enforcement, constitutional rights are generally invoked defensively under other laws or asserted offensively pursuant to an independent cause of action designed for that purpose.

“And those independent causes of action must normally come from Congress, for we are ‘[n]ow long past ‘the heady days in which [courts] assumed common-law powers to create causes of action,’” Richardson said, citing Egbert v. Boule.

The cause of action first created in Bivens continues to cover three narrow domains, the first being an implied cause of action under the Fourth Amendment to recover damages suffered as the result of a warrantless search and seizure in Bivens.

And Davis v. Passman extended Bivens to a congressional staffer fired because of her sex in violation of the Fifth Amendment, while Carlson v. Green extended Bivens to allow a federal prisoner’s estate to bring an Eighth Amendment claim for deficient care.

“For the past 45 years, [the Supreme] Court has consistently declined to extend Bivens to new contexts,” Richardson pointed out. “In the meantime, it ‘has made clear’ to the inferior courts ‘that expanding the Bivens remedy to a new context is an ‘extraordinary act’ that will be unavailable ‘in most every case.’”

Therefore, courts conduct a highly restrictive two-step analysis to decide whether a Bivens cause of action exists, beginning with whether the case arises in a new context or involves a new category of defendants.

“And our understanding of a ‘new context’ is broad,” the judge noted. “If a case ‘is different in a meaningful way from previous Bivens cases,’ it involves an extension of Bivens.”

Many differences can be meaningful, such as the rank of officer involved, the constitutional right at issue, the extent of judicial guidance on the issue, the generality or specificity of action in question, legal mandates on the officer, the risk of disruptive intrusion by the judiciary, and potential special factors not considered in previous Bivens cases.

“If — and only if — the case is precisely like Bivens, Passman, or Carlson in all these ways, we stop at step one and allow the claim to proceed,” Richardson said. But if the case differs from the Bivens trio, the court asks whether any special factors counsel against extending Bivens.

“Today, step two’s search for reasons cases an even broader net than step one,” the judge said. “If ‘there is any rational reason (even one) to think that Congress is better suited’ to provide a cause of action than we – including even ‘the potential‘ that ‘judicial intrusion into a into a given field might be harmful or inappropriate’ — then we must deny the cause of action.”

Small differences

Richardson found that the actions of the task force officers in this case bore a superficial resemblance to those of the Bivens agents; both cases involved claims of unreasonable force in violation of the Fourth Amendment.

“But we do not consider context at a superficially high level of generality,” the judge said. “We must focus instead on the details. And there, ‘[e]ven ‘small’ differences can be ‘meaningful.’”

“Unlike Bivens, this case involves a different statutory scheme: U.S. Marshals working in a fugitive task force including federal, state and local agents,” he pointed out. “And the task force acted under the authority of a warrant.”

Here, the U.S. Marshals Service was a new category of defendant because it was not first and foremost a law-enforcement agency.

“Its ‘primary role and mission’ is more specific: ‘to provide for the security and to obey, execute, and enforce all orders of’ the federal courts,” Richardson wrote. “The Service’s distinctive role and unique relationship with the Judiciary give us reason to worry that we ‘likely cannot predict the systemwide consequences of’ extending Bivens to Marshals.”

The potential range of policy considerations involved suggested that “Congress may be ‘far more competent than the Judiciary to carry out the necessary balancing,’” the judge added.

“And although not every new defendant will make for a new context, this case involves a different ‘statutory or other legal mandate under which the officer was operating,’” Richardson said.

“Here, the Service operated under its congressional mandate to coordinate federal, state and local law enforcement agencies chosen by the Attorney General to form joint fugitive task forces for the purpose of “locating and apprehending fugitives,’” the judge said.

Richardson also took pause due to the joint task forces’ narrow, specialized mandate to execute a warrant and apprehend a fugitive at the direction of Congress and the attorney general, as well as federalism concerns because they consist of federal, state and local officers.

“And these officers don’t just work side-by-side; the Marshals have the authority to federally deputize other officers on the task forces, bringing what would otherwise be state action under a federal banner,” the judge noted.

“Just as the Supreme Court has declined to expand Bivens when international comity is at stake, we decline to expand Bivens when state-federal relations are on the line,” the judge wrote. “Instead, we join our sister circuits in holding that these joint task forces are new Bivens contexts.”

Additionally, Richardson said the officers acted under a warrant and “[s]earches pursuant to a warrant will rarely require any deep inquiry into reasonableness,” citing United States v. Leon.

“Under our precedents, that warrant means Orellana’s case involves a different right — and different policy implications — than Bivens,” he wrote. “And under Supreme Court precedent, that is enough to make this a new context.”

Special factors

“Although the Court ‘has not defined the phrase “special factors counselling hesitation,”’ Richardson said “it has made clear that ‘separation-of-powers principles are the ‘central’ consideration.”

“[I]f there is any reason to think that ‘judicial intrusion’ into a given field might be ‘harmful’ or ‘inappropriate,”’ or that there is even a ‘potential’ for such consequences,’ we won’t allow the plaintiff a Bivens remedy,” the judge explained.

Richardson found multiple reasons, one being interference with the relationship between the service and its state and local partners by exposing individual officers to potential loss.

“More still, as the Eleventh Circuit observed, ‘Congress and the Executive Branch have created at least two administrative procedures to review complaints of excessive force arising out of USMS-led task force actions,’” the judge pointed out.

Even if they were not as effective as an individual damages remedy, such procedures counselled against allowing Orellana’s suit.

Thus, the majority reversed the district court’s denial of the Service’s motion to dismiss.