NATHANIEL HICKS, Plaintiff - Appellee, v. OFFICER GERALD L. FERREYRA, in his individual capacity; OFFICER BRIAN A. PHILLIPS,
No. 19-1697
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
July 14, 2020
PUBLISHED
Appeal from the United States District Court for the District of Maryland at Greenbelt. Paul W. Grimm, District Judge. (8:16-cv-02521-PWG)
Submitted: May 18, 2020
Decided: July 14, 2020
Before MOTZ, KEENAN, and HARRIS, Circuit Judges.
Affirmed in part and dismissed in part by published opinion. Judge Harris wrote the opinion, in which Judge Motz and Judge Keenan joined.
PAMELA HARRIS, Circuit Judge:
This appeal arises from two traffic stops in which United States Park Police officers allegedly seized Nathaniel Hicks in violation of the
On appeal, the officers argue – for the first time – that no Bivens remedy is available to Hicks, because applying Bivens here would constitute an improper extension of that case into a “new context.” See Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017). And according to the officers, the district court committed reversible error when it failed to take up that question sua sponte and dismiss Hicks‘s action under Abbasi. We disagree. Contrary to the officers’ suggestion, our well-established forfeiture rules govern here, and those rules do not allow the officers to raise before us a claim they never pressed in the district court.
The officers also argue that the district court erred in denying them summary judgment based on qualified immunity, pointing to instances in which they believe the district court misconstrued the record evidence. In this interlocutory posture, however, our jurisdiction is limited to issues of law, and does not permit us to review a district court‘s assessment of the factual record. We therefore dismiss this portion of the officers’ appeal.
I.
A.
Because this is an interlocutory appeal of a denial of qualified immunity, we recount the facts as the district court viewed them – that is, in the light most favorable to the plaintiff, Nathaniel Hicks, drawing all justifiable inferences in his favor. See Winfield v. Bass, 106 F.3d 525, 529–30 (4th Cir. 1997) (en banc).
In the early morning hours of July 11, 2015, Nathaniel Hicks – then an agent of the United States Secret Service – was parked on the shoulder of Interstate 295 North in Maryland, waiting to lead an oncoming motorcade in his government-assigned vehicle, which had a police antenna, strobing bar, and illuminated emergency lights. At approximately 6:00 a.m., Gerald Ferreyra – an officer with the United States Park Police (“USPP“) – parked his police cruiser behind Hicks‘s government vehicle and approached, initiating what would become the first of the two stops of Hicks, this one lasting for between 40 and 60 minutes.
As he approached, Ferreyra saw Hicks‘s service weapon – a handgun – inside Hicks‘s car, and drew his own weapon. Hicks quickly identified himself to Ferreyra as a Secret Service agent and displayed
Despite fully satisfying himself that Hicks was, in fact, a Secret Service agent who was authorized to carry a handgun under both state and federal statutes, see
After the motorcade passed, the USPP supervisor arrived and informed Hicks that he was free to leave, and Ferreyra returned Hicks‘s weapon and credentials and allowed Hicks to leave the scene. By then, it was between 6:40 and 6:59 a.m., or 40 to 59 minutes after the stop was initiated at 6:00 a.m. And by no later than 6:25 a.m. – and perhaps much earlier – the USPP officers were fully aware that Hicks was an on-duty Secret Service agent authorized to carry a weapon, but they nevertheless continued the detention.
The second stop at issue occurred only minutes later, when Hicks, almost as soon as he had left the scene of his initial detention, was pulled over by Phillips. Hicks “was not driving erratically,” Hicks, 396 F. Supp. 3d at 580, and Phillips “knew it was Agent Hicks‘s vehicle he was stopping,” id. at 579. Phillips approached Hicks‘s vehicle and said: “I noticed when you departed the scene you were on the phone. It‘s against the law in the
State of Maryland for an officer to be on the phone” while driving. Id. at 572. (In fact, Maryland law expressly permits law enforcement officers like Hicks to use their cellphones while driving. Id. at 580 (citing
B.
In July of 2016, Agent Hicks filed a Bivens action for damages against Officers Ferreyra and Phillips, alleging that the officers had violated his clearly established
The district court denied the officers’ motion for summary judgment on Hicks‘s
Under that doctrine, the officers are entitled to qualified immunity unless “(1) the allegations, if true, substantiate a violation of a federal statutory or constitutional right and (2) the right was ‘clearly established’ such that a reasonable person would have known his acts or omissions violated that right.” Brockington v. Boykins, 637 F.3d 503, 506 (4th Cir. 2011) (internal quotation marks omitted). In the officers’ view, the district court explained, the analysis could begin and end under the first prong, because “both of their detentions of Hicks were reasonable under the circumstances,” and so there was no
With respect to the first stop, the court started by clarifying the nature of Hicks‘s claim. Hicks did not challenge the initiation of the first stop, when Ferreyra observed Hicks‘s car and then his service weapon. Instead, Hicks invoked the well-settled doctrine that a seizure that is lawful at its inception may become constitutionally unreasonable if it lasts “longer than is necessary to effectuate” its purpose. Id. at 576 (quoting United States v. Sharpe, 470 U.S. 675, 684 (1985)). According to Hicks, his stop, which lasted for up to an hour, became constitutionally unreasonable once the officers had determined that he was an on-duty Secret Service agent authorized to carry his weapon, thus dispelling any reasonable suspicion and “effectuat[ing] the purpose of the stop.” Id. at 578 (quoting Sharpe, 470 U.S. at 685).
Viewing the record evidence in the light most favorable to Hicks, the district court determined that the officers had assuaged any concerns about Hicks and knew that he was
an on-duty Secret Service agent by no later than 6:25 a.m. – or between 15 and 35 minutes before finally releasing Hicks. See id. at 577–78. To justify their continued detention of Hicks, the officers argued primarily that because Hicks disagreed with Ferreyra about the circumstances of their encounter, it was “customary protocol” to detain Hicks until a supervisor arrived on the scene, even after reasonable suspicion had been dispelled. id. at 578. But the district court – considering the full evidentiary record, including Officer Ferreyra‘s own deposition testimony, in the light most favorable to Hicks – found “no evidence that the Park Police were following an established protocol when they continued to detain Agent Hicks for more than fifteen minutes after they knew that he was an on duty Secret Service agent.” Id. at 579. Accordingly, the officers were not entitled to summary judgment on their claim that the continued detention of Hicks was “reasonable under the circumstances.” Id. Nor were the officers entitled to qualified immunity as a matter of law under the “clearly established” prong of the inquiry: “[D]etaining [Hicks] under these circumstances – when the officers had a reasonable suspicion that criminal activity was underway but, after some investigation, became aware that no criminal activity was happening at the scene” – would be a violation of “clearly established”
car; whether Phillips left the scene of the first detention after Hicks, making it more likely that he would have recognized Hicks‘s car; and whether Hicks was driving erratically when Phillips initiated the stop. Id. at 579–80. But viewing the record in the light most favorable to Hicks, the district court determined that Phillips left the scene after Hicks and knew it was Hicks‘s car he was pulling over, and that Hicks was not driving erratically at the time. See id.
Phillips also cited Hicks‘s use of a cell phone as justification for the stop. But the district court went on to find that once Phillips recognized Hicks as the same Secret Service agent he had just detained – concededly no later than when Phillips approached Hicks in his car – he had no basis to suspect Hicks of violating Maryland‘s prohibition on the use of cell phones while driving, which clearly does not apply to on-duty law enforcement officers, or to continue to detain Hicks while demanding his license and registration. See id. at 580. Accordingly, Phillips could not show, as a matter of law, “a particularized, objective basis” to justify his stop of Hicks under the
The officers timely appealed the district court‘s denial of summary judgment on qualified immunity grounds.
II.
A.
We review de novo a district court‘s denial of qualified immunity at summary judgment. See Cox v. Quinn, 828 F.3d 227, 235 (4th Cir. 2016). The standard we apply is
the same as that used by the district court: We view the facts in the light most favorable to the nonmoving party – here, Agent Hicks – and recognize that summary judgment may be granted only if “no material facts are disputed” and the officers are “entitled to judgment as a matter of law” on their qualified immunity claim. Ausherman v. Bank of Am. Corp., 352 F.3d 896, 899 (4th Cir. 2003); see also Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc);
The scope of our review is further limited by the procedural posture of this appeal. As a general matter, denials of summary judgment are interlocutory orders not subject to appellate review. See Williams v. Strickland, 917 F.3d 763, 767 (4th Cir. 2019). There is an exception, however, for denials of summary judgment as to qualified immunity, which may be appealed immediately under the collateral order doctrine. See id. at 768. But such interlocutory appeals are limited to legal questions: Our jurisdiction extends only to the denial of qualified immunity “to the extent it turns on an issue of law.” Gould v. Davis, 165 F.3d 265, 268 (4th Cir. 1998) (emphasis added). “Whether we agree or disagree with the district court‘s assessment of the record evidence,” in other words, “is of no moment in the context of [an] interlocutory appeal.” Culosi v. Bullock, 596 F.3d 195, 201 (4th Cir. 2010); see also Hensley ex rel. North Carolina v. Price, 876 F.3d 573, 579 (4th Cir. 2017) (“In this procedural posture, we may not credit defendant[s‘] evidence, weigh the evidence,
plaintiff,” are the defendant officers “still entitled to qualified immunity?” Strickland, 917 F.3d at 768 (emphasis added) (footnote omitted).
B.
Before turning to qualified immunity, we consider the officers’ late-breaking argument that Hicks‘s constitutional claim should have been dismissed at the outset because he lacks a cause of action under Bivens.2
In Bivens, the Supreme Court recognized an implied cause of action for certain damages suits against federal officials who violate constitutional rights – there, against federal law enforcement officers who allegedly violated the
“refused to extend Bivens to any new context or new category of defendants.” Id. at 1857 (internal quotation marks omitted). And in Abbasi, on which the officers chiefly rely, the Supreme Court “clarified the framework” used to determine whether a Bivens remedy is available, Tun-Cos v. Perrotte, 922 F.3d 514, 522 (4th Cir. 2019): If a case presents a “new Bivens context” – that is, if it is “different in [any] meaningful way” from the Supreme Court‘s three Bivens cases – then courts may not extend Bivens liability if there are “special factors counseling hesitation.” Id. (quoting Abassi, 137 S. Ct. at 1857, 1859). If the “context is not new,” on the other hand, “then [the] Bivens remedy continues to be available.” Id.
Here, the officers argue that their case – notwithstanding its similarities to Bivens, which likewise involved a
749 F.3d 276, 285 (4th Cir. 2014) (citation omitted). This rigorous standard is an even higher bar than the “plain error” standard applied in criminal cases, see Stewart v. Hall, 770 F.2d 1267, 1271 (4th Cir. 1985) (explaining that in a civil case such a “fundamental error” must be “so serious and flagrant that it goes to the very integrity” of the proceedings (internal quotations marks omitted)), and the burden is on the party who has failed to preserve an argument to show that the standard is met, see Under Seal, 749 F.3d at 292.
The officers do not dispute any of this longstanding doctrine. Instead they argue, in effect, that it does not apply here, because the error of which they complain is non-waivable. According to the officers, Abbasi sets out a framework “that now must be applied in determining whether a Bivens remedy is available against a federal official,” under which courts first “must inquire whether a given case presents a ‘new Bivens context,‘” and, if it does, then it “must, before extending Bivens liability, evaluate whether there are ‘special factors counselling hesitation.‘” Tun-Cos, 922 F.3d at 522–23 (emphasis altered from original) (citing Abbasi, 137 S. Ct. at 1857, 1859). And because the Abbasi analysis is mandatory, the officers argue, the district courts are obliged to take up the question sua sponte, even if the defendants in a Bivens action do not raise it.
We disagree. As a general rule, “the parties’ litigation conduct” determines what issues are properly before a court, and a defense may be “forfeited if the party asserting [it] waits too long to raise the point.” Kontrick v. Ryan, 540 U.S. 443, 456 (2004). There is an exception for rules governing subject-matter jurisdiction, which may be raised by a party at any time or by a court on its own initiative. See id. (distinguishing between subject-matter jurisdiction, which may not be forfeited, and inflexible claims-processing
rules, which may); see also Gonzalez v. Thaler, 565 U.S. 134, 141 (2012) (“Subject-matter jurisdiction can never be waived or forfeited.“). But the availability of a Bivens cause of action does not fall within that exception, because it is not an issue that implicates a court‘s subject-matter jurisdiction. See Air Courier Conference of Am. v. Am. Postal Workers Union, 498 U.S. 517, 523 n.3 (1991) (“Whether a cause of action exists is not a question of jurisdiction. ...“). Nor have the officers pointed to any other source of authority for treating the availability of a Bivens remedy as within the limited category of non-waivable legal issues.3
that courts must raise the question of whether a seizure was reasonable sua sponte if nobody has argued the point, and it has been established for almost a century that a defendant has no right to raise that question for the first time on appeal. See Segurola v. United States, 275 U.S. 106, 112 (1927) (failure to object waives
That leaves us with our standard forfeiture and waiver principles, under which we will consider an issue not raised before the district court only in “exceptional circumstances” and reverse only if the proponent of the newly discovered argument can establish “fundamental error.” Under Seal, 749 F.3d at 285 (internal quotation marks omitted). But the officers here have provided no explanation at all for why they did not raise their Bivens-extension argument in the district court; the case on which they chiefly rely, Ziglar v. Abassi, was decided over a year before they submitted their summary judgment briefs to the district court, and itself merely “clarified” what already was well-established case law, Tun-Cos, 922 F.3d at 522. Nor have the officers contended at all with our “fundamental error” standard or attempted to show that they can meet it here. For that reason alone, the officers have failed to satisfy their burden of establishing the kind of “fundamental error” that might warrant reversal on a ground not raised before the district court. See Under Seal, 749 F.3d at 292 (holding that failure to argue on appeal for fundamental error “marks the end of the road for [an] argument for reversal not first presented to the district court” (internal quotation marks omitted)).
Nor are we concerned that holding the officers to the normal consequences of this second forfeiture might risk a “denial of fundamental justice.” Id. at 285. The crux of the
officers’ claim, as described above, is that this case presents a “new Bivens context,” different in some “meaningful way” from cases in which the Supreme Court already has recognized a Bivens remedy. Tun-Cos, 922 F.3d at 522–23 (quoting Abbasi, 137 S. Ct. at 1859). But along every dimension the Supreme Court has identified as relevant to the inquiry, this case appears to represent not an extension of Bivens so much as a replay: Just as in Bivens, Hicks seeks to hold accountable line-level agents of a federal criminal law enforcement agency, for violations of the
C.
We turn now to the officers’ challenge to the district court‘s rulings on qualified immunity. We conclude that we lack jurisdiction to consider this portion of the officers’ appeal, because the officers contest only the district court‘s assessment of the factual record and raise no reviewable questions of law. See Davis, 165 F.3d at 268 (limiting interlocutory review of denials of qualified immunity to issues of law).
We emphasize at the outset what the officers are not challenging on appeal. They do not argue that “if we take the facts as the district court [gave] them to us,” Strickland, 917 F.3d at 768, then the district court erred as a legal matter when it found that the alleged conduct violated the
Instead, the officers seek review of a question that we may not consider in this interlocutory posture: whether the district court properly assessed the factual record in front of it. See Culosi, 596 F.3d at 201 (“Whether we agree or disagree with the district court‘s assessment of the record evidence on that issue, however, is of no moment in the context of this interlocutory appeal.“). With respect to the first stop, the officers’ argument centers exclusively on the district court‘s finding that the lack of record support for a purported “customary protocol” supporting Hicks‘s lengthy detention precluded the award of summary judgment. According to the officers, the district court misconstrued the record
in making that determination, improperly refusing to consider evidence of an unwritten protocol. We tend to read the district court‘s carefully reasoned opinion differently, but that is “of no moment” in this posture, id.: Such “fact-related dispute[s] about the pretrial record” fall outside our limited jurisdiction. Johnson v. Jones, 515 U.S. 304, 307 (1995).
The same is true of the second stop, as to which the officers again raise exclusively fact-based arguments. Here, the officers’ focus is on the district court‘s determination that the factual record – read in the light most favorable to Hicks, and resolving all material factual disputes in his favor – showed that Officer Phillips left the scene of the first stop just after Hicks and recognized Hicks‘s car before he pulled it over, and that Hicks was not driving erratically at the time. See Hicks, 396 F. Supp. 3d at 579–80. According to the officers, the district court again erred in its assessment of the record, this time by disregarding Phillips‘s own deposition testimony to the contrary. Competing deposition testimony, of course, is precisely what gives rise to the kind of genuine dispute of fact identified by the district
Accordingly, we dismiss the officers’ appeal of the district court‘s qualified immunity holding for lack of jurisdiction.
III.
For the foregoing reasons, we dismiss this appeal in part and otherwise affirm the district court‘s order denying summary judgment.
AFFIRMED IN PART AND DISMISSED IN PART
PAMELA HARRIS
UNITED STATES CIRCUIT JUDGE