MARK PETTIBONE, ET AL V. GABRIEL RUSSELL, ET AL, No. 22-35183 (9th Cir. 2023)
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Plaintiff protested outside the federal courthouse in Portland, Oregon. He alleged that federal officers unlawfully arrested protesters and used excessive force, including by indiscriminately using tear gas against peaceful protesters. Together with other protesters, he brought this action against Defendant, then the Director of the Federal Protective Service’s Northwest Region, under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). The district court denied Defendant’s motion to dismiss.
The Ninth Circuit reversed, concluding that no Bivens cause of action is available in this case. Applying the two-step analysis set forth in Egbert v. Boule, 142 S. Ct. 1793 (2022), the panel held that a Bivens remedy could not be extended to this case because it presented a new context, and at least two independent factors indicated that the court was less equipped than Congress to determine whether the damages action should proceed.
The court wrote this case differed from Bivens because (1) Defendant, a high-level supervisor, was of a different rank than the agents in Bivens; (2) Defendant’s alleged actions, which consisted of ordering or acquiescing in unconstitutional conduct, took place at a higher level of generality than the actions of the agents in Bivens; and (3) the legal mandate under which Defendant acted differed from that of the agents in Bivens in that Defendant was directing a multi-agency operation to protect federal property and was carrying out an executive order. Allowing a Bivens action to proceed in this case could expose sensitive communications between Defendant and other high-level executive officers.
Court Description: Civil Rights. Reversing the district court’s order denying defendant’s motion to dismiss, the panel held that Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), did not provide a cause of action for protesters who alleged that Gabriel Russell, then the Director of the Federal Protective Service’s Northwest Region, ordered or acquiesced in subordinates’ unlawful arrests and uses of excessive force during protests outside the federal courthouse in Portland, Oregon in the summer of 2020.. The panel first held that it had jurisdiction over this interlocutory appeal. The Supreme Court’s opinion in Wilkie v. Robbins, 551 U.S. 537 (2007), establishes that, in an interlocutory appeal from a denial of qualified immunity, courts necessarily have jurisdiction to decide whether an underlying Bivens cause of action exists. Applying the two-step analysis set forth in Egbert v. Boule, 142 S. Ct. 1793 (2022), the panel held that a Bivens remedy could not be extended to this case because it presented a new context, and at least two independent factors indicated that the court was less equipped than Congress to determine whether the damages action should proceed. This case differed from Bivens—the only Supreme Court case recognizing an implied damages remedy for Fourth Amendment violation because (1) defendant Gabriel 4 PETTIBONE V. RUSSELL Russell, a high-level supervisor, was of a different rank than the agents in Bivens; (2) Russell’s alleged actions, which consisted of ordering or acquiescing in unconstitutional conduct, took place at a higher level of generality than the actions of the agents in Bivens; and (3) the legal mandate under which Russell acted differed from that of the agents in Bivens in that Russell was directing a multi-agency operation to protect federal property and was carrying out an executive order. And because Russell was carrying out an executive order, providing a Bivens remedy in this context would carry a greater “risk of disruptive intrusion by the Judiciary into the functioning of other branches” than was present in Bivens. This case also differed from Carlson v. Green, 446 U.S. 14 (1980), which involved prison officials and a claim of cruel and unusual punishment under the Eighth Amendment. Allowing a Bivens action to proceed in this case could expose sensitive communications between Russell and other high-level executive officers. Moreover, Congress had afforded plaintiffs an alternative remedy that independently foreclosed a Bivens action. Because plaintiffs had no cause of action under Bivens, the panel did not consider whether Russell would be entitled to qualified immunity. PETTIBONE V. RUSSELL 5
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