Professional Documents
Culture Documents
TJ Cato Amicus
TJ Cato Amicus
No. 23-5288
TOBIAS JONES,
Appellant,
v.
On Appeal from the U.S. District Court for the District of Columbia
No. 1:22-cv-00962-TSC, Judge Tanya S. Chutkan
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]
Pursuant to D.C. Circuit Rule 28(a)(1), amicus curiae Cato Institute certifies
as follows:
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
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
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).
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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
entity organized under § 501(c)(3) of the Internal Revenue Code. Cato Institute is a
individual liberty, limited government, free markets, and peace. Its scholars and
ii
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TABLE OF CONTENTS
Page
GLOSSARY..............................................................................................................xi
ARGUMENT ............................................................................................................. 4
II. The District Court Erred in Concluding That Any Special Factors
Counsel Against Jones’s Bivens Claim .........................................................13
iii
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CONCLUSION ........................................................................................................29
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
iv
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TABLE OF AUTHORITIES
Page
CASES
A Quaker Action Grp. v. Morton, 516 F.2d 717 (D.C. Cir. 1975)...........................15
* 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
Cannon v. Wells Fargo Bank, N.A., 926 F. Supp. 2d 152 (D.D.C. 2013) ................. 23
* 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
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
Authorities principally relied upon are marked with an asterisk (*).
v
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Hurd v. District of Columbia, 864 F.3d 671 (D.C. Cir. 2017) ................................23
* 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
U.S. Const.:
Amend. I ................................................................................................1, 4, 26
Westfall Act, Pub. L. No. 100-694, 102 Stat. 4563 .................................3, 18, 19, 21
vi
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18 U.S.C. § 3056(a)................................................................................................5, 7
18 U.S.C. § 3056(b)(3)............................................................................................... 7
18 U.S.C. § 3056(c).................................................................................................... 7
18 U.S.C. § 3056(f).................................................................................................... 7
LEGISLATIVE MATERIALS
ADMINISTRATIVE MATERIALS
vii
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OTHER MATERIALS
viii
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Jack Boger et al., The Federal Tort Claims Act Intentional Torts
Amendment: An Interpretive Analysis, 54 N.C. L. REV. 497
(1976) ............................................................................................................. 22
ix
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x
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GLOSSARY
xi
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in 1977 and dedicated to advancing the principles of individual liberty, free markets,
focuses on the scope of substantive criminal liability, the proper role of law
safeguards for criminal suspects and defendants, citizen participation in the criminal
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.
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force to prevent him from continuing to film, and unlawfully seized and searched
him.
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
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
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
2
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trust in our institutions increases. The district court’s decision undercuts these
with impunity.
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
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
The Westfall Act provides an explicit and broadly worded exception for Bivens
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
3
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Fourth, the district court’s decision exemplifies the risk that narrowly
construing Bivens poses to other invaluable rights. The court vitiated Jones’s core
complaint in favor of the agents, drew all inferences in their favor, and made
ostensibly arose from a misguided suspicion towards Bivens claims. But duly
Finally, the decision below will significantly chill the First Amendment right
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
ARGUMENT
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
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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’s unique mandate has not justified granting special privileges to its agents
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
government officials.
purpose of the Secret Service. The Secret Service’s original purpose was “to stamp
5
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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,
also was responsible for “detecting persons perpetrating frauds against the
robbers, land frauds and a number of other infractions against federal laws” having
The Secret Service continues to investigate such financial crimes and frauds.
card fraud, wire and bank fraud, computer network breaches, ransomware, and other
“internet crimes against children.” U.S. Secret Serv., Our Investigative Mission,
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
https://www.secretservice.gov/sites/default/files/reports/2023-07/sa-brochure-
6
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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
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
§ 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
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
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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
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
U.S.C. § 3056A(b)(2).
Because the Secret Service’s statutory mandate — including the mandate for
exists to categorically immunize its agents from Bivens claims. Invoking one portion
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
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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,
in “grand jury proceedings” involving President Clinton “on the ground that the
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
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.’”
9
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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
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
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
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protection of the laws, whenever he receives an injury. One of the first duties of
Bivens also enhances public trust in our institutions by providing all citizens
Inmate Litigation, 116 HARV. L. REV. 1555, 1681 (2003) (explaining that “news
Constitutional Tort Remedies, 35 GA. L. REV. 845, 859 (2001) (“When constitutional
virtuous cycle, and the crucible of discovery can fix attention on problem actors and
Clergy Sexual Abuse Litigation: The Policymaking Role of Tort Law, 39 CONN. L.
REV. 809, 814 (2007) (news coverage of litigation “encouraged increasing numbers
11
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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
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.
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
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
Learn from Lawsuits, 33 CARDOZO L. REV. 841, 845 (2012). The district court’s
12
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sweeping grant of immunity is thus antithetical to our civil justice system and a free
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
Instead, the court cursorily concluded that “[r]estricting filming of a Secret Service
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
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
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Mitchell, 472 U.S. at 523 (rejecting Attorney General’s claim for national security-
This case squarely implicates the Supreme Court’s concern. The district court
the Secret Service (including its Uniformed Division) engages in many run-of-the-
officials. See supra pp. 5-8. And yet the court reasoned that a case “‘need not’”
security as a special factor.’” JA26 (quoting Buchanan v. Barr, 71 F.4th 1003, 1009
Service agents can defeat a Bivens claim even when interactions with them do not
Ferreyra, 64 F.4th 156, 168 n.3 (4th Cir. 2023) (traffic stop “near the headquarters
14
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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,
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
whether the officers were engaged in sensitive protective work or whether the
The court was well-equipped to manage such discovery. The U.S. District
Court for the District of Columbia frequently encounters cases implicating national
15
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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
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.
security concerns in the case at hand. There was no such finding here.
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
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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
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
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(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
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
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
§ 2679(b)(2)(B).
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
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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,
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
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,
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
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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
is no way to tell what [Congress] intended except the text.”). It is therefore “utterly
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
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:
275, 283, 287 (1988). Federal law-enforcement officers are such a group: they are
20
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officers therefore have far more ability to influence legislative action than a disparate
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
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
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such inaction is often entirely unrelated to changes in case law and, instead, driven
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.
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
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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
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
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
— “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
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(¶¶ 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
Those allegations support the plausible inference that the agents were engaged
district court reached the contrary conclusion only by reading each and every
The court concluded that the “large open hangar” of the “strange looking
JA24-25. But those are the court’s embellishments; it is plausible that the
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
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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
The court concluded that the agents’ “decision not to answer [Jones’s]
questions about the building’s function also reflects discretion about its
plausible that the agents refused to answer because they did not know the
they were frustrated that a law-abiding member of the public would not
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/.
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the agent may have lied. He may have detained and searched Jones as
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
established. See, e.g., Fields v. City of Philadelphia, 862 F.3d 353, 359 (3d Cir.
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2017) (“[R]ecording police activity in public falls squarely within the First
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
a form that can readily be disseminated to others serves a cardinal First Amendment
(citation omitted).
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
(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
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.
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record police activity. See Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 70
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
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)
photographers”).
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
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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
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
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
CONCLUSION
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Respectfully submitted,
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