In a published opinion dated July 14, 2020, the U.S. Court of Appeals for the Fourth Circuit upheld a trial court’s denial of qualified immunity for two federal officers who had been sued for unlawfully detaining a Black Secret Service Agent, without cause, while he was on duty preparing to join a Secret Service motorcade.

Relman Colfax represents Special Agent Nathaniel Hicks, who has sued U.S. Park Police Officers Gerald Ferreyra and Brian Phillips for violations of his clearly established Fourth Amendment rights. The lawsuit alleges that, on the morning of July 11, 2015, the officers unlawfully detained Agent Hicks on two separate occasions without probable cause or reasonable suspicion while he awaited a Secret Service motorcade.  The U.S. Supreme Court has recognized such a cause of action since its 1971 opinion in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.

Following discovery, the officers moved for summary judgment on the Bivens claim. U.S. District Judge Paul W. Grimm denied the motion on June 10, 2019, finding that the officers were not entitled to qualified immunity at the summary judgment stage because a trier of fact could conclude both that the officers’ behavior violated the Fourth Amendment and that these constitutional violations were clearly established.

Writing for a unanimous panel, Judge Pamela Harris affirmed the district court’s denial of summary judgment. The decision establishes—for the first time—that officers may not argue that a lower court’s ruling constituted an improper extension of Bivens when they failed to make the argument in front of the lower court. The court rejected the officers’ claim that their arguments under Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), were non-waivable, reasoning that the officers’ arguments around the availability of a Bivens remedy did not qualify for the “narrow” category of non-waivable issues under Fourth Circuit law.

In addition, the appeals court noted that no fundamental miscarriage of justice resulted from its decision not to hear the officers’ argument under Abbasi that Agent Hicks’s cause of action constituted a Bivens extension. To the contrary, it observed, “along every dimension the Supreme Court has identified as relevant to the inquiry, this case appears to represent not an extension of Bivens so much as a replay: Just as in Bivens, Hicks seeks to hold accountable line-level agents of a federal criminal law enforcement agency, for violations of the Fourth Amendment, committed in the course of a routine law-enforcement action.” The court also found that it lacked jurisdiction to address the officers’ remaining arguments because they improperly asked the court to re-assess the district court’s review of the factual record.

A trial date has been set for the fall of 2020.

Relman Colfax's litigation team is led by Jia Cobb, Yiyang Wu, Angela Groves, Brittany Lee, and Olivia Fritz. Click here to review the Fourth Circuit opinion.

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