Nathaniel Hicks v. Gerald Ferreyra, 965 F.3d 302

Nathaniel Hicks, an on-duty U.S. Secret Service agent, was stopped twice by U.S. Park Police officers on July 11, 2015 while in his government vehicle with visible law-enforcement markings.
First stop: Officer Ferreyra approached, saw Hicks’s service weapon, seized the weapon and credentials, then detained Hicks while calling other officers; Ferreyra conceded Hicks’s credentials looked legitimate and at some point the officers knew Hicks was authorized to carry the weapon; Hicks was detained 40–59 minutes in total and released after a supervisor arrived.
Seconds later Officer Phillips pulled Hicks over; Phillips initially cited cellphone use (which Maryland law allows for on-duty officers) and detained Hicks; Phillips acknowledged recognizing Hicks.
Hicks sued Ferreyra and Phillips under Bivens for Fourth Amendment violations (unreasonable prolonged seizure and an unlawful second stop). The district court denied the officers’ motion for summary judgment on qualified immunity, finding factual disputes and that rights were clearly established.
On appeal the officers raised for the first time an Abbasi-based argument that Bivens does not extend to this context; the Fourth Circuit held that argument forfeited, and dismissed the portion of the appeal that sought review of fact-bound qualified-immunity determinations for lack of jurisdiction, affirming in part and dismissing in part.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a Bivens remedy is available here under the Abbasi framework	Hicks: Bivens applies to Fourth Amendment claims against federal officers	Officers: This presents a new Bivens context under Abbasi, so no implied remedy	Forfeited — officers never raised Abbasi in district court; appellate court refused to consider it
Whether courts must apply Abbasi sua sponte if defendants do not raise it	Hicks: not required; parties control issues presented	Officers: Abbasi analysis is mandatory and non-waivable	Rejected — availability of Bivens is not jurisdictional and may be forfeited; courts need not raise it sua sponte
Whether officers are entitled to qualified immunity as a legal matter given the district court’s view of the facts	Hicks: detentions violated clearly established Fourth Amendment rights	Officers: detentions were reasonable and qualified immunity applies	Dismissed for lack of jurisdiction — appeal contests factual findings, not a legal question the court may review now
Whether the first stop became unreasonable (prolonged) and the second stop was justified	Hicks: first stop was unreasonably prolonged after officers knew he was authorized; second stop lacked reasonable suspicion	Officers: factual disputes and asserted customary protocol justified continued detention and stop	District court’s factual determinations stand at this interlocutory stage; appellate court will not reweigh facts

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (recognition of an implied damages action against federal officers for Fourth Amendment violations)
Ziglar v. Abbasi, 137 S. Ct. 1843 (framework limiting extensions of Bivens; asks whether context is new and whether special factors counsel hesitation)
Tun-Cos v. Perrotte, 922 F.3d 514 (4th Cir.) (describing Abbasi two-step as the test applied in this circuit)
Winfield v. Bass, 106 F.3d 525 (4th Cir.) (standard for viewing facts in qualified-immunity interlocutory review)
United States v. Sharpe, 470 U.S. 675 (principle that a lawful stop may become unconstitutional if it lasts longer than necessary)
Johnson v. Jones, 515 U.S. 304 (limits on appellate review of factbound denials of summary judgment on qualified immunity)
Kontrick v. Ryan, 540 U.S. 443 (parties’ litigation conduct determines which defenses are preserved; distinguishes subject-matter jurisdiction)
In re Under Seal, 749 F.3d 276 (4th Cir.) (high threshold — "fundamental error" — to consider issues raised first on appeal in civil cases)
Wilkie v. Robbins, 551 U.S. 537 (Supreme Court has in some circumstances permitted appellate courts to address whether an implied cause of action exists)
Schultz v. Braga, 455 F.3d 470 (4th Cir.) (example of Bivens claim for Fourth Amendment violation during a traffic stop)