TJ Cato Amicus

USCA Case #23-5288 Document #2054148 Filed: 05/13/2024 Page 1 of 44
ORAL ARGUMENT NOT YET SCHEDULED
IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 23-5288
TOBIAS JONES,
Appellant,
v.
UNITED STATES SECRET SERVICE,

OF THE U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL.,
Appellees.
On Appeal from the U.S. District Court for the District of Columbia
No. 1:22-cv-00962-TSC, Judge Tanya S. Chutkan
BRIEF OF CATO INSTITUTE

AS AMICUS CURIAE IN SUPPORT OF APPELLANT AND REVERSAL
MICHAEL K. KELLOGG
MATTHEW J. WILKINS
DUSTIN G. GRABER
KELLOGG, HANSEN, TODD, FIGEL
& FREDERICK, P.L.L.C.
1615 M Street, N.W., Suite 400
Washington, D.C. 20036
(202) 326-7900
[email protected]
[email protected]
[email protected]
Counsel for Amicus Curiae

Cato Institute
May 13, 2024
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
Pursuant to D.C. Circuit Rule 28(a)(1), amicus curiae Cato Institute certifies
as follows:
A. Parties and Amici
Except as stated below, all parties, intervenors, and amici appearing before
the U.S. District Court for the District of Columbia and in this Court are listed in the
brief for appellant.
Amicus curiae Cato Institute is a non-profit entity organized under § 501(c)(3)
of the Internal Revenue Code.
B. Ruling Under Review
The ruling under review is the final order dismissing plaintiff’s complaint
entered on November 10, 2023 (Chutkan, J.), Dist. Ct. ECF No. 25 (JA34). The
order is not published; the Memorandum Opinion is not yet reported (but is available
at 2023 WL 8634586 and reproduced at JA18-33).
C. Related Cases
This case has not previously come before this Court or any other court. There
are no related cases within the meaning of D.C. Circuit Rule 28(a)(1)(C).
CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1 and D.C. Circuit
Rule 26.1, amicus curiae Cato Institute submits the following corporate disclosure
statement:
Cato Institute has no parent company, and no publicly held company has a
10% or greater ownership interest in Cato Institute. Cato Institute is a non-profit
entity organized under § 501(c)(3) of the Internal Revenue Code. Cato Institute is a
public-policy research organization – a think tank – dedicated to the principles of
individual liberty, limited government, free markets, and peace. Its scholars and
analysts conduct independent, nonpartisan research on a wide range of policy issues.
ii
TABLE OF CONTENTS
Page
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ..............i
CORPORATE DISCLOSURE STATEMENT ........................................................ ii
TABLE OF AUTHORITIES ..................................................................................... v
GLOSSARY..............................................................................................................xi
IDENTITY AND INTEREST OF AMICUS CURIAE .............................................. 1
INTRODUCTION AND SUMMARY OF ARGUMENT ........................................ 1
ARGUMENT ............................................................................................................. 4
I. The District Court Erred in Deciding That This Case

Meaningfully Differs from Bivens Just Because It Involves
Secret Service Agents ...................................................................................... 4
A. Nothing About the Secret Service’s Statutory Mandate

Suggests Its Agents Should Be Categorically Immune
from Bivens Claims ............................................................................... 5
B. The Secret Service’s Unique Statutory Duties Do Not

Immunize It from Other Established Legal Principles.......................... 9
C. Categorically Immunizing Any Group of Federal Actors

from Bivens Claims Erodes Governmental Accountability
and Public Trust...................................................................................10
II. The District Court Erred in Concluding That Any Special Factors
Counsel Against Jones’s Bivens Claim .........................................................13
III. The District Court’s Holding Neglects That Congress Already

Has Endorsed a Broad Bivens Remedy .........................................................18
IV. This Case Illustrates How a Narrow Conception of Bivens

Threatens Procedural Protections and Chills Constitutionally
Protected Activity .......................................................................................... 22
A. The District Court Undermined Jones’s Procedural Rights

in Its Attempt To Distinguish Bivens ..................................................22
iii
B. Bivens Is a Vital Protection for Citizen Journalists

Exercising Their First Amendment Rights .........................................26
CONCLUSION ........................................................................................................29
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
iv
TABLE OF AUTHORITIES
Page
CASES
A Quaker Action Grp. v. Morton, 516 F.2d 717 (D.C. Cir. 1975)...........................15
ACLU of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012)......................................27
* Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) ..........1, 2, 3, 4, 5, 8, 9,
10, 11, 12, 13, 14,
18, 19, 22, 26, 28, 29
Broward Bulldog, Inc. v. U.S. Dep’t of Just., 939 F.3d 1164 (11th Cir.
2019) ..............................................................................................................17
Buchanan v. Barr, 71 F.4th 1003 (D.C. Cir. 2023) .....................................14, 15, 19
Buckley v. Valeo, 424 U.S. 1 (1976) ........................................................................11
Cannon v. Wells Fargo Bank, N.A., 926 F. Supp. 2d 152 (D.D.C. 2013) ................. 23
City of Riverside v. Rivera, 477 U.S. 561 (1986) ....................................................12
Correctional Servs. Corp. v. Malesko, 534 U.S. 61 (2001)..................................... 28
* Davis v. Passman, 442 U.S. 228 (1979) ............................................4, 10, 12, 28, 29
Fields v. City of Philadelphia, 862 F.3d 353 (3d Cir. 2017) .......................26, 27, 29
Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) ..........................................................27
Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel.
Wilson, 559 U.S. 280 (2010) ...................................................................19, 20
Hamdan v. U.S. Dep’t of Just., 797 F.3d 759 (9th Cir. 2015) .................................17
Hicks v. Ferreyra, 64 F.4th 156 (4th Cir. 2023), cert. denied,

144 S. Ct. 555 (2024)............................................................................... 14-15
Hui v. Castaneda, 559 U.S. 799 (2010) ...................................................................18

Authorities principally relied upon are marked with an asterisk (*).
v
Hurd v. District of Columbia, 864 F.3d 671 (D.C. Cir. 2017) ................................23
Irizarry v. Yehia, 38 F.4th 1282 (10th Cir. 2022) ....................................................28
Jaffee v. Redmond, 518 U.S. 1 (1996) ....................................................................... 9
Keefe v. Marquette Cnty., 31 F. App’x 334 (7th Cir. 2002) ....................................23
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ............................................... 10
Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867) ............................................. 10
Mitchell v. Forsyth, 472 U.S. 511 (1985) ..........................................................13, 14
National Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012).............................19
Price v. Garland, 45 F.4th 1059 (D.C. Cir. 2022), cert. denied,

143 S. Ct. 2432 (2023)................................................................................... 27
* Sealed Case, In re, 148 F.3d 1073 (D.C. Cir. 1998) .....................................9, 10, 16
Sparrow v. United Air Lines, Inc., 216 F.3d 1111 (D.C. Cir. 2000) ......................... 1
Swidler & Berlin v. United States, 524 U.S. 399 (1998) ........................................... 9
* Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) .......................................................3, 13, 15
CONSTITUTION, STATUTES, AND RULES
U.S. Const.:
Amend. I ................................................................................................1, 4, 26
Amend. IV .......................................................................................2, 4, 10, 19
Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. ................................................22
Westfall Act, Pub. L. No. 100-694, 102 Stat. 4563 .................................3, 18, 19, 21
28 U.S.C. § 2679(b)(1) .................................................................................. 18
28 U.S.C. § 2679(b)(2)(B) .............................................................................18
vi
18 U.S.C. § 3056 ........................................................................................................ 7
18 U.S.C. § 3056(a)................................................................................................5, 7
18 U.S.C. § 3056(b) ................................................................................................... 7
18 U.S.C. § 3056(b)(3)............................................................................................... 7
18 U.S.C. § 3056(c).................................................................................................... 7
18 U.S.C. § 3056(c)(1)(C) ......................................................................................... 7
18 U.S.C. § 3056(f).................................................................................................... 7
18 U.S.C. § 3056A ..................................................................................................... 8
18 U.S.C. § 3056A(a)(3) ............................................................................................ 8
18 U.S.C. § 3056A(b)(2) ............................................................................................ 8
Fed. R. App. P. 29(a)(4)(E)........................................................................................ 1
D.C. Cir. R. 29(b)....................................................................................................... 1
LEGISLATIVE MATERIALS
H.R. 24, 97th Cong., 1st Sess. (1981) ......................................................................22
H.R. 595, 98th Cong., 1st Sess. (1983) ....................................................................22
S. 2117, 95th Cong., 1st Sess. (1977) ......................................................................22
S. 829, 98th Cong., 1st Sess. (1983) ........................................................................22
ADMINISTRATIVE MATERIALS
Fed. Bureau of Investigation, What We Investigate,

https://www.fbi.gov/investigate (accessed May 9, 2024) ............................. 16
vii
U.S. Dep’t of Homeland Sec., FY 2022 Budget in Brief (2022),

https://www.dhs.gov/sites/default/files/publications/dhs_bib_-
_web_version_-_final_508.pdf ........................................................................ 8
U.S. Secret Serv.:
150+ Years of History, https://www.secretservice.gov/about/

history/150-years (accessed May 9, 2024) ...................................................... 6
Become a Special Agent: Be Tomorrow’s US Secret Service

(July 2023), https://www.secretservice.gov/sites/default/files/
reports/2023-07/sa-brochure-print.pdf ........................................................ 6-7
Field Offices, https://www.secretservice.gov/contact/field-

offices (accessed May 9, 2024) ....................................................................... 7
Our Investigative Mission, https://www.secretservice.gov/

investigations (accessed May 9, 2024) ............................................................ 6
Timeline of Our History, https://www.secretservice.gov/about/

history/timeline (accessed May 9, 2024) ......................................................... 6
OTHER MATERIALS
Alex Altman, Why The Killing of George Floyd Sparked an American

Uprising, TIME (June 4, 2020), https://time.com/5847967/
george-floyd-protests-trump/ .........................................................................27
Am. Fed’n of Gov’t Emps.:
AFGE Facts (Mar. 11, 2024), https://www.afge.org/

globalassets/documents/flyers/2024/afge-facts_2024_march11.
pdf ..................................................................................................................21
Dues & Eligibility, https://www.afge.org/member-benefits/

join/dues-eligibility/ (accessed May 9, 2024) ...............................................21
Law Enforcement Officers, https://www.afge.org/common-

pages/law-enforcement-officers/ (accessed May 9, 2024) ............................21
viii
Jack Boger et al., The Federal Tort Claims Act Intentional Torts
Amendment: An Interpretive Analysis, 54 N.C. L. REV. 497
(1976) ............................................................................................................. 22
Connor Brooks, Bureau of Just. Statistics, Federal Law Enforcement

Officers, 2020 – Statistical Tables (rev. Sept. 29, 2023),
https://bjs.ojp.gov/document/fleo20st.pdf ..................................................... 21
Avidan Y. Cover, Revisionist Municipal Liability, 52 GA. L. REV. 375

(2018) ............................................................................................................. 12
William N. Eskridge, Jr.:
Interpreting Legislative Inaction, 87 MICH. L. REV. 67 (Oct.

1988) ..............................................................................................................20
Politics Without Romance: Implications of Public Choice

Theory for Statutory Interpretation, 74 VA. L. REV. 275 (1988) ..................20
Fed. Law Enforcement Officers Ass’n, Why Join FLEOA,

https://www.fleoa.org/why-join (accessed May 9, 2024) ............................. 21
Myriam E. Gilles, In Defense of Making Government Pay: The

Deterrent Effect of Constitutional Tort Remedies, 35 GA. L. REV.
845 (2001) ......................................................................................................11
David A. Graham, ‘Rough Rides’ and the Challenges of Improving

Police Culture, THE ATLANTIC (Apr. 27, 2015),
https://www.theatlantic.com/politics/archive/2015/04/the-
rough-ride-and-police-culture/391538/ .........................................................17
Seth F. Kreimer, Pervasive Image Capture and the First Amendment:

Memory, Discourse, and the Right to Record, 159 U. PA. L. REV.
335 (2011) ......................................................................................................28
Timothy D. Lytton, Clergy Sexual Abuse Litigation: The Policymaking

Role of Tort Law, 39 CONN. L. REV. 809 (2007) ........................................... 11
Tom Rogan, Secret Service agent assigned to Kamala Harris detail

involved in fight with other agents, WASH. EXAMINER (Apr. 24,
2024), https://www.washingtonexaminer.com/news/white-
house/2976729/secret-service-agent-protecting-kamala-harris-
involved-in-fight-with-other-agents/ .............................................................25
ix
Antonin Scalia & John F. Manning, A Dialogue on Statutory and

Constitutional Interpretation, 80 GEO. WASH. L. REV. 1610
(2012) ............................................................................................................. 20
Margo Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555 (2003)...................11
Joanna C. Schwartz, What Police Learn from Lawsuits, 33 CARDOZO L.

REV. 841 (2012) .............................................................................................12
Emily R. Siegel et al., Minneapolis police rendered 44 people

unconscious with neck restraints in five years, NBC NEWS (June
1, 2020), https://www.nbcnews.com/news/us-news/minneapolis-
police-rendered-44-people-unconscious-neck-restraints-five-
years-n1220416 ..............................................................................................17
x
GLOSSARY
AFGE American Federation of Government Employees
FBI Federal Bureau of Investigation
FLEOA Federal Law Enforcement Officers Association
xi
IDENTITY AND INTEREST OF AMICUS CURIAE1
The Cato Institute is a nonpartisan public-policy research foundation founded
in 1977 and dedicated to advancing the principles of individual liberty, free markets,
and limited government. Cato’s Project on Criminal Justice, founded in 1999,
focuses on the scope of substantive criminal liability, the proper role of law
enforcement in their communities and society, the protection of constitutional
safeguards for criminal suspects and defendants, citizen participation in the criminal
justice system, and accountability for law enforcement.
INTRODUCTION AND SUMMARY OF ARGUMENT
This case presents a straightforward application of Bivens v. Six Unknown
Named Agents, 403 U.S. 388 (1971). As the complaint alleges — and as this Court
must accept as true, see Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.
Cir. 2000) — Tobias Jones was peacefully exercising his First Amendment rights by
filming the open hangar door of a building from a public sidewalk. The inside of
the building was visible from the sidewalk, yet law-enforcement officers prohibited
Jones from filming without offering legal justification for doing so, used excessive
1
Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E) and D.C.
Circuit Rule 29(b), counsel for amicus represents that no counsel for any of the
parties authored any portion of this brief and that no entity, other than amicus or its
counsel, monetarily contributed to the preparation or submission of this brief.
Counsel for amicus represents that all parties have consented to the filing of this
brief.
force to prevent him from continuing to film, and unlawfully seized and searched
him.
These Fourth Amendment violations are actionable under Bivens. Indeed, as
the district court recognized, “[t]he facts” here “do not meaningfully differ from the
facts of Bivens itself.” JA23. Despite this, the court departed from Bivens just
because the law-enforcement officers in question were Secret Service agents. Indeed,
the court’s reasoning categorically exempts Secret Service agents from liability for
constitutional violations. That was an error with far-reaching implications.
First, the district court concluded that Jones’s Bivens claims were foreclosed
because part of the Secret Service’s statutory mandate includes protecting high-
ranking government officials. But the court’s analysis overlooked the fact that the
Secret Service’s statutory mandate extends far beyond such protective work and
includes many garden-variety law-enforcement activities. Accordingly, that
mandate does not justify granting categorical immunity to the entire agency,
regardless of a particular agent’s activities. Indeed, this Court already has found that
the Secret Service’s protective mandate does not justify extending special
exemptions to its agents from other legal proceedings.
Further, categorically exempting all Secret Service agents from liability
undermines foundational principles of our civil justice system. Civil-rights litigation
exposes government misconduct and spurs institutional reform. When citizens
2
believe their constitutional rights meaningfully can be vindicated in court, public
trust in our institutions increases. The district court’s decision undercuts these
virtues by effectively permitting Secret Service agents to disregard the Constitution
with impunity.
Second, the district court’s “special factors” analysis (JA22-23) defies
Supreme Court precedent. The Supreme Court has warned that “national security”
is not “a talisman” “to ward off inconvenient claims.” Ziglar v. Abbasi, 137 S. Ct.
1843, 1862 (2017). But the district court did not find this case actually implicates
national security. Instead, it reasoned that federal agents employed by an agency
with a connection to national security can escape Bivens liability, irrespective of the
particular facts of the case. That analysis is particularly alarming because it extends
national security to the secreting of law-enforcement techniques and practices,
opening the door for future rights abuses.
Third, the decision below implicates serious separation-of-powers concerns.
The Westfall Act provides an explicit and broadly worded exception for Bivens
claims, thus demonstrating Congress’s acceptance of the Bivens cause of action.
That text is the sole indicator of Congress’s position regarding Bivens claims.
Relying on congressional inaction since the Westfall Act — even in the face of the
repeated narrowing of Bivens claims — is both atextual and anti-democratic.
3
Fourth, the district court’s decision exemplifies the risk that narrowly
construing Bivens poses to other invaluable rights. The court vitiated Jones’s core
procedural protections in an effort to dismiss his claims. It repeatedly read the
complaint in favor of the agents, drew all inferences in their favor, and made
impermissible factual findings on a motion to dismiss. This chain of errors
ostensibly arose from a misguided suspicion towards Bivens claims. But duly
enacted procedural guarantees exist even in Bivens cases.
Finally, the decision below will significantly chill the First Amendment right
to record. Permitting law-enforcement officers to violate the Fourth Amendment
rights of citizens engaged in journalistic activity reduces the public’s incentive to
record police activity. Doing so gives individual officers a unilateral veto over the
First Amendment; officers can forcibly prevent the exercise of such rights with no
fear of liability. That result is antithetical to our civil justice system because it
renders foundational constitutional rights “merely precatory.” Davis v. Passman,
442 U.S. 228, 242 (1979).
The district court’s judgment should be reversed.
ARGUMENT
I. The District Court Erred in Deciding That This Case Meaningfully

Differs from Bivens Just Because It Involves Secret Service Agents
This case falls well within the bounds of recognized Bivens claims. The
district court acknowledged that the facts here “do not meaningfully differ from the
4
facts of Bivens itself.” JA23. But it concluded that “[t]his case differs in a
meaningful way from Bivens” because the law-enforcement officers involved are
Secret Service agents rather than Federal Bureau of Narcotics agents, and Secret
Service agents operate under a unique statutory mandate. JA24.
The district court’s conclusion is incorrect. The Secret Service’s statutory
mandate includes many garden-variety law-enforcement responsibilities. The Secret
Service’s unique mandate has not justified granting special privileges to its agents
in other contexts. And categorical immunity erodes governmental accountability
and public trust.
A. Nothing About the Secret Service’s Statutory Mandate Suggests Its

Agents Should Be Categorically Immune from Bivens Claims
The Secret Service’s statutory mandate does not support immunizing its
agents from Bivens claims. The district court reasoned that Jones’s Bivens claim
must fail because the Secret Service has a unique statutory mandate to protect high-
ranking government officials. See 18 U.S.C. § 3056(a) (“the United States Secret
Service is authorized to protect the following persons . . .”). But the Secret Service
is not a one-trick pony. Historically and statutorily, its agents have performed and
still perform many law-enforcement activities aside from protecting high-ranking
government officials.
Protecting high-ranking government officials was not even the original
purpose of the Secret Service. The Secret Service’s original purpose was “to stamp
5
out rampant counterfeiting” following the Civil War, when “nearly one-third of all
currency in circulation was counterfeit.” U.S. Secret Serv., 150+ Years of History,
https://www.secretservice.gov/about/history/150-years (accessed May 9, 2024). It
also was responsible for “detecting persons perpetrating frauds against the
government” and for investigating “nonconforming distillers, smugglers, mail
robbers, land frauds and a number of other infractions against federal laws” having
nothing to do with protecting high-ranking government officials. U.S. Secret Serv.,
Timeline of Our History, https://www.secretservice.gov/about/history/timeline
(accessed May 9, 2024).
The Secret Service continues to investigate such financial crimes and frauds.
“Today, . . . much of the Secret Service[’s] investigative work” focuses on “credit
card fraud, wire and bank fraud, computer network breaches, ransomware, and other
cyber-enabled financial crimes,” as well as “counterfeiting,” “identity theft,” and
“internet crimes against children.” U.S. Secret Serv., Our Investigative Mission,
https://www.secretservice.gov/investigations (capitalization omitted) (accessed
May 9, 2024). Indeed, all Secret Service “Special Agents are assigned to a
field office” for at least three years to perform investigative work before
being placed on a protective assignment. U.S. Secret Serv., Become a Special
Agent: Be Tomorrow’s US Secret Service 23 (July 2023),
https://www.secretservice.gov/sites/default/files/reports/2023-07/sa-brochure-
6
print.pdf.2 And many Special Agents return to investigatory work in field offices,
or go to work in the Secret Service’s headquarters (in Washington, D.C.), after their
protective assignments.
The Secret Service’s statutory mandate reflects this mix of protection duties
and run-of-the-mill law-enforcement powers. Section 3056 of Title 18 spells out the
powers, authorities, and duties of the Secret Service. Subsection (a) authorizes the
Secret Service to protect certain categories of individuals. 18 U.S.C. § 3056(a). But
Section 3056 contains six more subsections, most of which are unrelated to
protective functions. For example, subsection (b) empowers Secret Service agents
“to detect and arrest any person who” engages in “any fraud or other criminal or
unlawful activity in or against any federally insured financial institution.” Id.
§ 3056(b)(3). Subsection (c) authorizes them to “make arrests without warrant for
any offense against the United States committed in their presence, or for any felony
cognizable under the law of the United States if they have reasonable grounds to
believe that the person to be arrested has committed” the felony. Id. § 3056(c)(1)(C)
(emphases added). And subsection (f) empowers the Secret Service “to provide
forensic and investigative assistance” to “any State or local law enforcement agency
in conjunction with an investigation.” Id. § 3056(f).
2
There are more than three dozen field offices around the country. See
U.S. Secret Serv., Field Offices, https://www.secretservice.gov/contact/field-offices
(accessed May 9, 2024).
7
Likewise, 18 U.S.C. § 3056A prescribes the “[p]owers, authorities, and duties
of [the] United States Secret Service Uniformed Division” (heading) to which
Sergeant Holland belongs. Section 3056A authorizes the division to protect various
locations, including the “Treasury Building and grounds.” Id. § 3056A(a)(3); see
also U.S. Dep’t of Homeland Sec., FY 2022 Budget in Brief 50 (2022) (Secret
Service “protects the White House Complex, the Vice President’s Residence, foreign
diplomatic missions, and other designated buildings”) (emphasis added),
https://www.dhs.gov/sites/default/files/publications/dhs_bib_-_web_version_-
_final_508.pdf. Further, the statute explains that “Members of the United States
Secret Service Uniformed Division shall possess privileges and powers similar to
those of the members of the Metropolitan Police of the District of Columbia.” 18
U.S.C. § 3056A(b)(2).
Because the Secret Service’s statutory mandate — including the mandate for
the Uniformed Division — involves garden-variety law enforcement, no reason
exists to categorically immunize its agents from Bivens claims. Invoking one portion
of an agency’s statutory mandate should not shield officers operating under a
different part of that mandate. Here, the complaint does not allege — and the court
could not reasonably infer, see infra pp. 23-26 — that the defendants were engaged
in protective functions when they harassed, detained, and searched Jones. The court
erred when it dismissed this case based on the Secret Service’s protective mandate.
8
B. The Secret Service’s Unique Statutory Duties Do Not Immunize It

from Other Established Legal Principles
Finding that the Secret Service’s protective functions do not immunize its
agents from Bivens accords with this Court’s treatment of Secret Service agents in
other legal contexts. For example, this Court has concluded that the Secret Service’s
protective functions do not confer upon its agents a special privilege not to testify
about what they heard the President say while protecting him. See In re Sealed Case,
148 F.3d 1073, 1079 (D.C. Cir. 1998) (per curiam).
In Sealed Case, Secret Service agents “refused to answer certain questions”
in “grand jury proceedings” involving President Clinton “on the ground that the
information sought was protected from disclosure by a ‘protective function
privilege.’” Id. at 1074. The agents argued that compelling testimony about the
President’s statements would “jeopardize the ability of the Secret Service effectively
to protect the President” by discouraging the President from keeping his agents close
to him. Id. at 1075-76. This Court recognized “the universally shared understanding
that the nation has a profound interest in the security of the President,” but found
that the Secret Service’s arguments were “‘speculation—thoughtful speculation, but
speculation nonetheless.’” Id. at 1076 (quoting Swidler & Berlin v. United States,
524 U.S. 399, 410 (1998)). That the agents were engaged in protective functions did
not overcome the “‘general duty to give what testimony one is capable of giving.’”
Id. at 1075 (quoting Jaffee v. Redmond, 518 U.S. 1, 9 (1996)).
9
The same reasoning applies here. Secret Service agents have a general duty
not to violate the public’s Fourth Amendment rights. That they engage in protective
functions does not detract from that duty. And the Bivens remedy exists to enforce
that duty. Any suggestion that the Bivens remedy will impair the Secret Service’s
protective capabilities is “speculation—thoughtful speculation, but speculation
nonetheless.” Id. at 1076.
C. Categorically Immunizing Any Group of Federal Actors from

Bivens Claims Erodes Governmental Accountability and Public
Trust
Foundational to our justice system are the ideas that “no one is above the law,”
Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 478 (1867), and that victims can seek
appropriate recompense when other actors violate the law, see Marbury v. Madison,
5 U.S. (1 Cranch) 137, 163 (1803) (“[I]t is a settled and invariable principle . . . that
every right, when withheld, must have a remedy, and every injury its proper
redress.”). Bivens promotes these principles by providing a path for private citizens
to recover damages when federal actors violate their constitutional rights. See Davis,
442 U.S. at 242-44. Accordingly, Bivens promotes public confidence in the social
contract underlying our system of governance by giving individuals a mechanism to
hold rights-violators accountable. See Marbury, 5 U.S. (1 Cranch) at 163 (“The very
essence of civil liberty certainly consists in the right of every individual to claim the
10
protection of the laws, whenever he receives an injury. One of the first duties of
government is to afford that protection.”).
Bivens also enhances public trust in our institutions by providing all citizens
— not just victims — awareness of government action. Cf. Margo Schlanger,
Inmate Litigation, 116 HARV. L. REV. 1555, 1681 (2003) (explaining that “news
organizations . . . can use filed complaints to expose” government misconduct).
“Sunlight” is “the best of disinfectants.” Buckley v. Valeo, 424 U.S. 1, 67 (1976)
(per curiam). Bivens enables victims to bring government actors’ constitutional
malfeasance to light through public proceedings in federal court. See Myriam E.
Gilles, In Defense of Making Government Pay: The Deterrent Effect of
Constitutional Tort Remedies, 35 GA. L. REV. 845, 859 (2001) (“When constitutional
tort victims pursue litigation, motivated by the availability of compensatory damages,
valuable information is unearthed and exposed.”). Such litigation encourages other
victims of government misconduct to come forward, exposing patterns of abuse in a
virtuous cycle, and the crucible of discovery can fix attention on problem actors and
institutional deficiencies within law-enforcement agencies. Cf. Timothy D. Lytton,
Clergy Sexual Abuse Litigation: The Policymaking Role of Tort Law, 39 CONN. L.
REV. 809, 814 (2007) (news coverage of litigation “encouraged increasing numbers
of victims to come forward and seek legal redress”).
11
By exposing governmental malfeasance, Bivens also can promote institutional
reform and curb future rights abuses. See City of Riverside v. Rivera, 477 U.S. 561,
575 (1986) (plurality) (civil-rights litigation benefits the public because “the
damages a plaintiff recovers contributes significantly to the deterrence of civil rights
violations in the future”). A well-functioning system of public accountability and
reform creates a positive feedback loop that builds public trust in our institutions
because individuals believe that misconduct will be discovered, punished, and then
prevented through either reform or the deterrent effect of litigation. See Avidan Y.
Cover, Revisionist Municipal Liability, 52 GA. L. REV. 375, 410-11 (2018).
Categorically excluding swaths of federal actors from this system has the
opposite effect. Private citizens lose faith that their enshrined rights have meaning
and will be respected without a mechanism to enforce those rights. Indeed, the
Supreme Court has observed that, without means to vindicate constitutional rights,
those rights become “merely precatory.” Davis, 442 U.S. at 242. Similarly, public
confidence in our institutions is diminished because such violations are less
frequently exposed and corrected. See Cover, 52 GA. L. REV. at 410. “[M]isconduct
allegations” are less likely to “surface through . . . other reporting systems,” such as
civilian complaints and use-of-force reports. Joanna C. Schwartz, What Police
Learn from Lawsuits, 33 CARDOZO L. REV. 841, 845 (2012). The district court’s
12
sweeping grant of immunity is thus antithetical to our civil justice system and a free
and well-functioning society.
II. The District Court Erred in Concluding That Any Special Factors
Counsel Against Jones’s Bivens Claim
The district court purported to identify just one “special factor” that counseled
against Jones’s Bivens claim — national security. JA25. But the court made no
factual findings regarding whether any national-security concerns actually existed.
Instead, the court cursorily concluded that “[r]estricting filming of a Secret Service
hanger’s interior . . . serves the interest of national security by ensuring that
individuals are not able to capture, study, or attempt to evade the Secret Service’s
law enforcement techniques.” Id. According to the court, this created “the necessary
nexus to national security” and foreclosed Bivens. JA26-27. The court’s fleeting
analysis is contrary to Supreme Court precedent because it treats national security
as an irrefutable trump card.
In Ziglar v. Abbasi, the Supreme Court warned that “national-security
concerns must not become a talisman used to ward off inconvenient claims—a ‘label’
used to ‘cover a multitude of sins.’” 137 S. Ct. at 1862 (quoting Mitchell v. Forsyth,
472 U.S. 511, 523 (1985)). And the “danger of abuse is even more heightened given
the difficulty of defining the security interest in domestic cases.” Id. (cleaned up).
Indeed, the Supreme Court has recognized the “real” “danger” that “federal officials
will disregard constitutional rights in their zeal to protect the national security.”
13
Mitchell, 472 U.S. at 523 (rejecting Attorney General’s claim for national security-
based absolute immunity).
This case squarely implicates the Supreme Court’s concern. The district court
acknowledged that “[n]ot every interaction involving Secret Service officers
implicates national security.” JA26. That is clearly correct. As discussed above,
the Secret Service (including its Uniformed Division) engages in many run-of-the-
mill law-enforcement activities in addition to protecting high-ranking government
officials. See supra pp. 5-8. And yet the court reasoned that a case “‘need not’”
involve “‘an ongoing or imminent threat to national security to invoke national
security as a special factor.’” JA26 (quoting Buchanan v. Barr, 71 F.4th 1003, 1009
(D.C. Cir. 2023)). In other words, by invoking national-security concerns, Secret
Service agents can defeat a Bivens claim even when interactions with them do not
necessarily implicate national security and even when no actual national-security
concern exists. Under the court’s analysis, hypothetical national-security concerns
officially have become a talisman for avoiding Bivens actions.
Heeding the Supreme Court’s admonishment, though, requires assessing
whether a given case actually implicates national-security concerns. See Hicks v.
Ferreyra, 64 F.4th 156, 168 n.3 (4th Cir. 2023) (traffic stop “near the headquarters
of the National Security Agency” had no national-security implications based on
“purely coincidental proximity with no relevance to the facts or constitutional
14
violations at issue”), cert. denied, 144 S. Ct. 555 (2024). Indeed, this Court
conducted that analysis in Buchanan. There, the Court explained that a protest in
Lafayette Park “‘presents some measure of hazard to the security of the President
and the White House.’” Buchanan, 71 F.4th at 1009 (quoting A Quaker Action Grp.
v. Morton, 516 F.2d 717, 731 (D.C. Cir. 1975)). That case implicated a real national-
security concern in which “officers in the area surrounding the White House and the
President [had to] be able to act without hesitation.” Id. Thus, unlike the court below,
the Buchanan Court tethered national-security concerns to the specific activity (a
protest) and its proximity to protected places and persons.
Here, the district court answered the national-security question in the abstract,
preventing any discovery into the specifics of this case and relieving the government
of its burden to demonstrate that national security was actually implicated. That
approach runs roughshod over Ziglar’s warning. Instead, if the court thought that
this case presented national-security concerns (which are not present on the face of
the complaint), it could have ordered limited, expedited discovery to determine
whether the officers were engaged in sensitive protective work or whether the
building in question implicated unique national-security concerns.
The court was well-equipped to manage such discovery. The U.S. District
Court for the District of Columbia frequently encounters cases implicating national
security. Its courthouse has a sensitive compartmented information facility (SCIF).
15
Its capabilities are proven, having handled the cases of the Guantanamo Bay
detainees. The court easily could manage discovery in a way that appropriately
balances Jones’s rights with the Secret Service’s interests. 3 Therefore, the
appropriate course here was to provide due process — not to dismiss Jones’s
complaint based on abstract justifications at the pleadings stage.
Broadly defining national security has wide-reaching implications. A generic
and abstract application of national security could plausibly insulate much of the
federal government. For example, while national security falls within the FBI’s
mandate, the FBI also investigates matters with no connection to national security.
See FBI, What We Investigate (explaining that FBI investigates civil-rights
violations, public corruption, violent crime, and white-collar crime),
https://www.fbi.gov/investigate (accessed May 9, 2024). The same could be said of
many other law-enforcement agencies. The only way to prevent national-security
concerns from becoming a talisman is to require courts to find actual national-
security concerns in the case at hand. There was no such finding here.
The district court’s opinion is especially concerning because it invokes
national security to justify keeping law-enforcement techniques secret from the
public. The court reasoned that “preventing the disclosure of law enforcement
3
This is especially true considering the Secret Service possesses no
“protective function privilege” against testifying about what they learn while
protecting even the President. Sealed Case, 148 F.3d at 1079.
16
techniques and procedures” is an important government interest. JA25-26. Such
reasoning is antithetical to a free and just society. See Hamdan v. U.S. Dep’t of Just.,
797 F.3d 759, 769-70 (9th Cir. 2015) (“Government transparency is critical to
maintaining a functional democratic polity, where the people have the information
needed to check public corruption, hold government leaders accountable, and elect
leaders who will carry out their preferred policies.”). Practices that law enforcement
characterizes as “techniques” can — and, more often than they should, actually do
— violate the Constitution and harm citizens.4 Exposing and punishing such abusive
practices is necessary to vindicate the foundational values of our society.
The district court’s reasoning also falters because the law-enforcement
techniques and procedures that apparently needed to be kept secret were being
conducted in plain view of the public. Cf. Broward Bulldog, Inc. v. U.S. Dep’t of
Just., 939 F.3d 1164, 1191 (11th Cir. 2019) (explaining that “law enforcement
techniques or procedures that are universally known to the public cannot be shielded
from disclosure”) (collecting cases). If what was happening in the hangar were so
sensitive, then the agents should have shut the hangar door or blocked off the street
4
See, e.g., David A. Graham, ‘Rough Rides’ and the Challenges
of Improving Police Culture, THE ATLANTIC (Apr. 27, 2015),
https://www.theatlantic.com/politics/archive/2015/04/the-rough-ride-and-police-
culture/391538/; Emily R. Siegel et al., Minneapolis police rendered 44 people
unconscious with neck restraints in five years, NBC NEWS (June 1, 2020),
https://www.nbcnews.com/news/us-news/minneapolis-police-rendered-44-people-
unconscious-neck-restraints-five-years-n1220416.
17
(which any resident of the District of Columbia who has waited for the Presidential
motorcade knows the Secret Service can do), not harassed an innocent member of
the public standing on public property. Under the district court’s reasoning, though,
Secret Service agents (and many other law-enforcement officials) will have free
reign to harass members of the public as long as they claim they are protecting the
secrecy of their law-enforcement techniques.
III. The District Court’s Holding Neglects That Congress Already Has
Endorsed a Broad Bivens Remedy
The district court reasoned that it could not “alter the framework established
by the political branches” by recognizing a Bivens action here. JA26. But this
overlooks that Congress already has endorsed a broad Bivens action framework to
remedy a wide range of constitutional injuries.
The Westfall Act codifies Congress’s understanding and approval of a broad
Bivens remedy. That Act preempts claims against employees of the federal
government in most cases. 28 U.S.C. § 2679(b)(1). But that preemption “does not
extend or apply to a civil action against an employee of the Government . . . which
is brought for a violation of the Constitution of the United States.” Id.
§ 2679(b)(2)(B).
That statutory text is an “explicit exception for Bivens claims.” Hui v.
Castaneda, 559 U.S. 799, 807 (2010). And Congress wrote the exception broadly.
It applies to all “action[s] . . . brought for a violation of the Constitution,” not just to
18
actions brought for violations of the Fourth Amendment by agents of the Federal
Bureau of Narcotics. Had Congress wanted to limit the exception to certain contexts,
it could have enumerated those contexts, but it did not.
In short, Congress knew about and approved of Bivens when it passed the
Westfall Act. In passing that Act, Congress recognized that the Bivens cause of
action was broad in scope and condoned that breadth. And Congress never has
passed another law narrowing it.
But many courts have overlooked this statutory clarity. Instead of crediting
the broad vision of Bivens that Congress endorsed in the Westfall Act, they have
reasoned that Congress’s failure to reiterate that vision more recently somehow
reflects its approval of courts’ increasingly narrow perception. See, e.g., Buchanan,
71 F.4th at 1008. That reasoning is deeply flawed. Inferring congressional intent
from inaction is improper because it both offends basic principles of statutory
interpretation and is profoundly anti-democratic.
Basic principles of statutory interpretation forbid using later congressional
inaction to rewrite existing legislation. The text of a duly enacted statute is “the best
evidence of Congress’s intent,” National Fed’n of Indep. Bus. v. Sebelius, 567 U.S.
519, 544 (2012), because it is “the only remnant of ‘history’ that bears the unanimous
endorsement of the majority in each House,” Graham Cnty. Soil & Water
Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 302 (2010) (Scalia,
19
J., concurring in part and concurring in the judgment). Without enacted statutory
text, “it is utterly impossible to discern what the Members of Congress intended.”
Id.; see also Antonin Scalia & John F. Manning, A Dialogue on Statutory and
Constitutional Interpretation, 80 GEO. WASH. L. REV. 1610, 1612 (2012) (“[T]here
is no way to tell what [Congress] intended except the text.”). It is therefore “utterly
impossible” — or at least utterly illogical — to infer anything from congressional
inaction, which by definition produces no new statutory text from which to infer any
intent.
Inferring intent from congressional inaction also ignores the realities of the
political process. Congress may neglect to enact legislation for various reasons. For
example, inaction may be “biased in favor of well-organized (and frequently wholly
unrepresentative) groups.” William N. Eskridge, Jr., Interpreting Legislative
Inaction, 87 MICH. L. REV. 67, 104-05 (Oct. 1988). Such groups often have the
motivation and resources “to monopolize the attention of legislators” and “skew
public decisionmaking” in favor of policies that may benefit them at the expense of
the American people at large. William N. Eskridge, Jr., Politics Without Romance:
Implications of Public Choice Theory for Statutory Interpretation, 74 VA. L. REV.
275, 283, 287 (1988). Federal law-enforcement officers are such a group: they are
20
numerous, 5 well-organized in powerful unions and other associations, 6 well-
funded,7 and motivated to influence policy in this area.8 Federal law-enforcement
officers therefore have far more ability to influence legislative action than a disparate
collection of persons injured by (or future victims of) constitutional violations —
who lack the necessary coordination — or the American people as a whole — who
are not focused on this particular issue. Congressional inaction is therefore a poor
indicator of acquiescence to any judicial interpretation of the Westfall Act. Rather,
5
In 2020, the federal government “employed 136,815 full-time federal law
enforcement officers” across 90 agencies. Connor Brooks, Bureau of Just. Statistics,
Federal Law Enforcement Officers, 2020 – Statistical Tables 1 (rev. Sept. 29, 2023),
https://bjs.ojp.gov/document/fleo20st.pdf.
6
The American Federation of Government Employees (a union) represents
approximately 100,000 (nearly three-fourths) of federal law-enforcement officers,
and the Federal Law Enforcement Officers Association (a professional association)
represents more than 30,000. See AFGE, Law Enforcement Officers,
https://www.afge.org/common-pages/law-enforcement-officers/ (accessed May 9,
2024); FLEOA, Why Join FLEOA, https://www.fleoa.org/why-join (accessed May
9, 2024).
7
The AFGE conservatively collects more than $135 million in dues every
year: it has 300,000 active members who pay $18-22 in dues every pay period.
See AFGE, Dues & Eligibility, https://www.afge.org/member-benefits/join/dues-
eligibility/ (accessed May 9, 2024); AFGE, AFGE Facts (Mar. 11, 2024),
https://www.afge.org/globalassets/documents/flyers/2024/afge-
facts_2024_march11.pdf.
8
The FLEOA claims to be “the largest ‘legislative voice’ for the federal law
enforcement community” and often “testif[ies] at congressional hearings and
represent[s] the overall position of the federal law enforcement profession.” FLEOA,
Why Join FLEOA, https://www.fleoa.org/why-join (accessed May 9, 2024).
21
such inaction is often entirely unrelated to changes in case law and, instead, driven
by congressional focus elsewhere.
Finally, if anything can be drawn from congressional inaction in this case, it
is that Congress continues to approve of suing individual federal officers for
constitutional torts. Congress has considered at least five bills that would have made
the United States the sole defendant in all constitutional tort actions. See Jack Boger
et al., The Federal Tort Claims Act Intentional Torts Amendment: An Interpretive
Analysis, 54 N.C. L. REV. 497, 512, 514 (1976) (discussing early versions of the
1974 amendments to the Federal Tort Claims Act); S. 2117, 95th Cong., 1st Sess.
(1977); H.R. 24, 97th Cong., 1st Sess. (1981); H.R. 595, 98th Cong., 1st Sess.
(1983); S. 829, 98th Cong., 1st Sess. (1983). By removing liability for individual
officers, these bills would have abrogated Bivens entirely. But Congress rejected
them all.
IV. This Case Illustrates How a Narrow Conception of Bivens Threatens

Procedural Protections and Chills Constitutionally Protected Activity
A. The District Court Undermined Jones’s Procedural Rights in Its

Attempt To Distinguish Bivens
A narrow understanding of Bivens also threatens fundamental procedural
protections for Bivens plaintiffs. In their efforts to distinguish the case in front of
them from Bivens, courts sometimes usurp the constitutional role of the jury and the
protections of the Rules of Civil Procedure.
22
This case illustrates that risk. On a motion to dismiss, “the relevant facts are
those alleged in the complaint, taken in the light most favorable to the plaintiff and
with all reasonable inferences drawn in his favor.” Hurd v. District of Columbia,
864 F.3d 671, 675 (D.C. Cir. 2017). And the district court does not “have the power
to[ ] make factual findings in ruling on [a] motion to dismiss,” as no evidentiary
record exists. Keefe v. Marquette Cnty., 31 F. App’x 334, 336 (7th Cir. 2002); see
also Cannon v. Wells Fargo Bank, N.A., 926 F. Supp. 2d 152, 175 (D.D.C. 2013).
But the court flouted those basic standards by repeatedly and improperly reading the
complaint in the light most favorable to the defendants, making all inferences in their
favor, and ultimately making factual determinations in their favor.
In the most notable example, the district court said that it could “conclude”
from the allegations in the complaint “that the agents were carrying out the Secret
Service’s protective functions” — as opposed to another law-enforcement function
— “during the altercation.” JA24. But the allegations in the complaint suggest no
such conclusion. The complaint did not allege that the agents were engaged in a
protective function. It did not allege that the agents were assigned to a protective
detail. It did not allege that a person eligible for Secret Service protection was
nearby. And it did not allege that the building in question was the White House, a
foreign embassy, or another building housing a protectee. Instead, it alleged that the
agents were inside “a large open hangar” of “a strange looking building” (JA6-7
23
(¶¶ 7-8)); that the agents told Jones he could not film the interior of the building (JA7
(¶¶ 9-13)); that the agents refused to answer Jones’s questions (JA7-8 (¶¶ 14-15, 30-
31)); and that the agents detained and searched him, ostensibly to make sure he was
not a threat (JA10 (¶¶ 45-55)).
Those allegations support the plausible inference that the agents were engaged
in run-of-the-mill law-enforcement functions, rather than protective functions. The
district court reached the contrary conclusion only by reading each and every
allegation in the light most favorable to the defendants:
 The court concluded that the “large open hangar” of the “strange looking
building” “may house sensitive personnel, vehicles, and equipment.”
JA24-25. But those are the court’s embellishments; it is plausible that the
“hangar” was the loading dock of an administrative building and contained
nothing sensitive at all.
 The court concluded that the agents told Jones he could not film or
photograph the hangar (despite its being open for anyone to view from a
public street) because they had “a concern for the secrecy and security of
the people and equipment inside.” JA24. But that too is the court’s
embellishment; the complaint alleged no such thing. It also is plausible
24
that the agents were wrong (i.e., that Jones was allowed to film the hangar9)
and were simply uncomfortable being filmed and used their veneer of
authority to stop him. See JA11 (¶ 62) (Sergeant Holland told Jones that
he couldn’t “care less” whether Jones’s activities were lawful).
 The court concluded that the agents’ “decision not to answer [Jones’s]
questions about the building’s function also reflects discretion about its
purpose.” JA24. Again, that is the court’s embellishment. It is equally
plausible that the agents refused to answer because they did not know the
answer, or because they were particularly ill-tempered that day, or because
they were frustrated that a law-abiding member of the public would not
unquestioningly obey their commands. Secret Service agents are humans,
too, and can make irrational decisions and have emotional outbursts.10
 The court credited the explanation of the agent who detained Jones that he
did so “because he needed to be sure [Jones] was not a threat.” JA24. But
9
Indeed, the Department of Homeland Security’s own bulletins acknowledge
that “no general security regulations prohibit[ ] the exterior photography of any
federally owned or leased building.” Opp. to Defs.’ Mot. To Dismiss Individual
Capacity Claims at 7, No. 1:22-cv-962-TSC, ECF #16; see id., ECF #16-1, #16-2.
10
See Tom Rogan, Secret Service agent assigned to Kamala Harris detail
involved in fight with other agents, WASH. EXAMINER (Apr. 24, 2024),
https://www.washingtonexaminer.com/news/white-house/2976729/secret-service-
agent-protecting-kamala-harris-involved-in-fight-with-other-agents/.
25
the agent may have lied. He may have detained and searched Jones as
revenge for annoying him.
Each of these examples poses a material question of fact: Were the agents
engaged in protective work or investigative work or other work? What was the
hangar and was there anything sensitive about it? Were the agents actually
concerned for the safety and security of people and equipment in the building (and
were there even people and equipment in there about which to be concerned)? Why
did the agents refuse to answer Jones’s questions before detaining and searching
him? The Rules of Civil Procedure entitle Jones to discovery on these questions,
and the Constitution guarantees him the right to a jury to answer them. But Jones
never received discovery or a jury trial because the district court improperly made
factual determinations after reading Jones’s allegations in the light most favorable
to the agents.
Perhaps the district court committed these elementary procedural errors in part
from a sense that Bivens claims are out of vogue and should therefore be treated with
exceptional suspicion. But a plaintiff’s procedural and constitutional protections do
not disappear just because he asserts a seemingly disfavored claim.
B. Bivens Is a Vital Protection for Citizen Journalists Exercising Their

First Amendment Rights
The right to record the activities of law-enforcement officers in public is well-
established. See, e.g., Fields v. City of Philadelphia, 862 F.3d 353, 359 (3d Cir.
26
2017) (“[R]ecording police activity in public falls squarely within the First
Amendment right of access to information.”); ACLU of Illinois v. Alvarez, 679 F.3d
583, 594-95 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011). And
the importance of that right is unquestionable. See Price v. Garland, 45 F.4th 1059,
1070 (D.C. Cir. 2022) (“Filming a public official performing public duties on public
property implicates unique first amendment interests.”), cert. denied, 143 S. Ct. 2432
(2023); Glik, 655 F.3d at 82 (“Gathering information about government officials in
a form that can readily be disseminated to others serves a cardinal First Amendment
interest in protecting and promoting ‘the free discussion of governmental affairs.’”)
(citation omitted).
Recordings by citizen journalists can bring to light instances of government
misconduct that might otherwise escape scrutiny. See Fields, 862 F.3d at 360
(explaining that “the proliferation of bystander videos has ‘spurred action at all
levels of government to address police misconduct and to protect civil rights’”)
(citation omitted). The murder of George Floyd by a police officer, for example,
became a national news story because a concerned citizen filmed it. See, e.g., Alex
Altman, Why The Killing of George Floyd Sparked an American Uprising, TIME
(June 4, 2020), https://time.com/5847967/george-floyd-protests-trump/. Without
that film, Floyd’s murder likely never would have made local news, much less
national headlines, and his killer likely still would be working in law enforcement.
27
Restricting Bivens, however, has a chilling effect on the public’s incentive to
record police activity. See Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 70
(2001) (“The purpose of Bivens is to deter individual federal officers from
committing constitutional violations.”); Irizarry v. Yehia, 38 F.4th 1282, 1297 (10th
Cir. 2022) (noting that “attempting to deter an individual from filming the police
through physical interference and threats causes injury sufficient to chill the speech
of a person of ordinary firmness”). Without a Bivens remedy, law-enforcement
officers often can harass citizen journalists with impunity, thus discouraging future
recording. See Seth F. Kreimer, Pervasive Image Capture and the First Amendment:
Memory, Discourse, and the Right to Record, 159 U. PA. L. REV. 335, 366 (2011)
(explaining that “the threat of arrest remains a potent deterrent to spontaneous
photographers”).
Beyond chilling future conduct, closing the courthouse to constitutional
violations enables federal agents to unilaterally extinguish important constitutional
rights. See Davis, 442 U.S. at 242 (explaining that, unless “litigants who allege that
their own constitutional rights have been violated” are “able to invoke the existing
jurisdiction of the courts for the protection of their justiciable constitutional rights,”
“such rights . . . become merely precatory”). That is what happened here. According
to the complaint, Jones was permissibly recording police activity — a prima facie
example of protected conduct. While there may be instances where sufficient
28
government interest can overcome the public’s right to record, no such determination
occurred here. See Fields, 862 F.3d at 360 (“The right to record police is . . . subject
to reasonable time, place, and manner restrictions.”) (cleaned up). Rather, by
holding that Jones lacked a cause of action, the district court prevented any
evaluation of the merits. The result is a regime where law enforcement can
effectively prohibit any recording without scrutiny, and the public’s ability to record
turns on the whims of any individual officer.
These concerns extend beyond just recording federal law enforcement;
barring the courthouse impairs public scrutiny of countless types of government
action. Beyond intentional misconduct, narrowly applying Bivens prevents
discovery of even inadvertent mistakes that could otherwise be readily corrected.
Without a viable cause of action, the right to procedural due process becomes little
more than an empty promise. The ability to seek judicial intervention prevents
foundational constitutional rights from becoming “merely precatory,” subject to the
whims and carelessness of federal actors. Davis, 442 U.S. at 242.
CONCLUSION
The judgment of the district court should be reversed.
29
Respectfully submitted,
/s/ Michael K. Kellogg

MICHAEL K. KELLOGG
MATTHEW J. WILKINS
DUSTIN G. GRABER
KELLOGG, HANSEN, TODD, FIGEL
& FREDERICK, P.L.L.C.
1615 M Street, N.W., Suite 400
Washington, D.C. 20036
(202) 326-7900
[email protected]
[email protected]
[email protected]

May 13, 2024 Cato Institute
30
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the applicable type-volume limitation set
forth in Federal Rules of Appellate Procedure 29(a)(5) and 32(a)(7)(B)(i) because it
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of Appellate Procedure 32(f) and D.C. Circuit Rule 32(e)(1).
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has been prepared using Microsoft Word 2016 in a proportionally spaced typeface
(Times New Roman, 14 point).

MICHAEL K. KELLOGG
Cato Institute
May 13, 2024
CERTIFICATE OF SERVICE
I hereby certify that, on May 13, 2024, I caused to be filed electronically the
foregoing BRIEF OF CATO INSTITUTE AS AMICUS CURIAE IN SUPPORT OF
APPELLANT AND REVERSAL with the Clerk of the Court for the United States
Court of Appeals for the District of Columbia Circuit using the appellate CM/ECF
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MICHAEL K. KELLOGG
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USCA Case #23-5288 Document #2054148 Filed: 05/13/2024 Page 1 of 44

ORAL ARGUMENT NOT YET SCHEDULED

IN THE UNITED STATES COURT OF APPEALS

UNITED STATES SECRET SERVICE,

BRIEF OF CATO INSTITUTE

Counsel for Amicus Curiae

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

A. Parties and Amici

brief for appellant.

Amicus curiae Cato Institute is a non-profit entity organized under § 501(c)(3)

of the Internal Revenue Code.

B. Ruling Under Review

at 2023 WL 8634586 and reproduced at JA18-33).

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1 and D.C. Circuit

10% or greater ownership interest in Cato Institute. Cato Institute is a non-profit

public-policy research organization – a think tank – dedicated to the principles of

analysts conduct independent, nonpartisan research on a wide range of policy issues.

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ..............i

CORPORATE DISCLOSURE STATEMENT ........................................................ ii

TABLE OF AUTHORITIES ..................................................................................... v

IDENTITY AND INTEREST OF AMICUS CURIAE .............................................. 1

INTRODUCTION AND SUMMARY OF ARGUMENT ........................................ 1

I. The District Court Erred in Deciding That This Case

A. Nothing About the Secret Service’s Statutory Mandate

B. The Secret Service’s Unique Statutory Duties Do Not

C. Categorically Immunizing Any Group of Federal Actors

III. The District Court’s Holding Neglects That Congress Already

IV. This Case Illustrates How a Narrow Conception of Bivens

A. The District Court Undermined Jones’s Procedural Rights

B. Bivens Is a Vital Protection for Citizen Journalists

ACLU of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012)......................................27

Buchanan v. Barr, 71 F.4th 1003 (D.C. Cir. 2023) .....................................14, 15, 19

Buckley v. Valeo, 424 U.S. 1 (1976) ........................................................................11

City of Riverside v. Rivera, 477 U.S. 561 (1986) ....................................................12

Correctional Servs. Corp. v. Malesko, 534 U.S. 61 (2001)..................................... 28

Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) ..........................................................27

Hicks v. Ferreyra, 64 F.4th 156 (4th Cir. 2023), cert. denied,

Hui v. Castaneda, 559 U.S. 799 (2010) ...................................................................18

Irizarry v. Yehia, 38 F.4th 1282 (10th Cir. 2022) ....................................................28

Jaffee v. Redmond, 518 U.S. 1 (1996) ....................................................................... 9

Keefe v. Marquette Cnty., 31 F. App’x 334 (7th Cir. 2002) ....................................23

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ............................................... 10

Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867) ............................................. 10

Mitchell v. Forsyth, 472 U.S. 511 (1985) ..........................................................13, 14

National Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012).............................19

Price v. Garland, 45 F.4th 1059 (D.C. Cir. 2022), cert. denied,

* Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) .......................................................3, 13, 15

CONSTITUTION, STATUTES, AND RULES

Amend. IV .......................................................................................2, 4, 10, 19

Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. ................................................22

28 U.S.C. § 2679(b)(1) .................................................................................. 18

28 U.S.C. § 2679(b)(2)(B) .............................................................................18

18 U.S.C. § 3056 ........................................................................................................ 7

18 U.S.C. § 3056(b) ................................................................................................... 7

18 U.S.C. § 3056(c)(1)(C) ......................................................................................... 7

18 U.S.C. § 3056A ..................................................................................................... 8

18 U.S.C. § 3056A(a)(3) ............................................................................................ 8

18 U.S.C. § 3056A(b)(2) ............................................................................................ 8

Fed. R. App. P. 29(a)(4)(E)........................................................................................ 1

D.C. Cir. R. 29(b)....................................................................................................... 1

H.R. 24, 97th Cong., 1st Sess. (1981) ......................................................................22

H.R. 595, 98th Cong., 1st Sess. (1983) ....................................................................22

S. 2117, 95th Cong., 1st Sess. (1977) ......................................................................22