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Ninth U.S. Circuit Won’t Take Expansive View of Bivens, Says Officers Shielded From Liability
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that federal parole agents have no personal liability to a man who was instructed by them to store his firearms off-premises before the release from prison of his father who was to live in the son’s home, with the whereabouts of the weapons—which came to be stolen—known only to the plaintiff, the storage facility manager, and one or more of the defendant officers.
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics—the U.S. Supreme Court’s 1971 decision in which it was held that implied in the Fourth Amendment is a cause of action for unreasonable searches and seizures—does not extend to the present fact situation, a three-judge panel said in yesterday’s memorandum opinion. Signing that opinion were Senior Circuit Judges Michael Daly Hawkins, Sidney R. Thomas, and M. Margaret McKeown.
The suit was filed by Derek Richard Parker against then-probation officer Mimi Manzano (now retired)—who, the plaintiff said, was told the location of the firearms—and two other agents, Christopher J. Marco and Ymelda Valenzuela. who, he alleged, might have had such knowledge.
Allegations of Pleading
He alleged in the operative complaint:
“Plaintiff will present evidence that he was subjected to a violation of his Fourth Amendment rights under the Constitution of the United States when he was forced to provide personal and confidential information concerning the specific location of his personal property. The Defendants, acting under color of authority, cited false, non-existent federal policy (law) and procedures to coerce personal information from the Plaintiff. Plaintiff was singled out for special actions solely based on the fact that his father is a convicted felon. Plaintiff is not, and never has been, a convicted felon.”
Parker maintained:
“Firearms that were safely and lawfully secured are now at large among the criminal community due to the unlawful coercion of the Defendants and Defendant MANZANO’S fixation with these lawfully owned firearms.”
District Court Ruling
In dismissing the action with prejudice, District Court Judge Ruth Bermudez Montenegro of the Southern District of California said:
“Although Bivens implied a damages remedy under the Fourth Amendment, the Supreme Court has made clear that Bivens does not extend to all Fourth Amendment claims….Additionally, this case differs from Bivens in meaningful ways.”
The facts pled in Brennan, as summarized by Justice William J. Brennan Jr., were these:
“Petitioner’s complaint alleged that on that day respondents, agents of the Federal Bureau of Narcotics acting under claim of federal authority, entered his apartment and arrested him for alleged narcotics violations. The agents manacled petitioner in front of his wife and children, and threatened to arrest the entire family. They searched the apartment from stem to stern. Thereafter, petitioner was taken to the federal courthouse in Brooklyn, where he was interrogated, booked, and subjected to a visual strip search.”
Different Allegations
Montenegro wrote:
“Here, unlike Bivens, Plaintiff does not claim the use of excessive force or an unconstitutional arrest, nor has Plaintiff alleged that any Defendant performed an unconstitutional search of Plaintiffs person or home. Instead, Plaintiff alleges that for his father to be able to live in his home while under supervision by federal probation, Defendants required him to provide documentation regarding where his firearms would be stored outside of the home….Defendants required this even though Plaintiff preferred and offered to allow them to search his home….Additionally, Plaintiff alleges Defendants did not provide him with the policies or regulations supporting this requirement when he requested them….Even though he brings them under the Fourth Amendment, these allegations present a very different context than Bivens.
Noting that a Bivens action may not be used to challenge an agency’s policies, the judge said:
“…Plaintiff’s Amended Complaint challenges the way Defendants document that firearms have been removed from a residence housing a person on federal supervision. Given numerous factors counsel hesitation in extending Bivens to Plaintiff’s claim, the Court finds Plaintiffs Fourth Amendment claim is foreclosed as a matter of law and further amendment would be futile.”
Ninth Circuit Opinions
The Ninth Circuit opinion says:
“None of the previously decided Bivens cases involved a third-party right to withhold firearm information from the U.S. Probation Office. Under the special factors analysis, we decline to extend a Bivens remedy to Appellant’s claim.”
The judges agreed with Montenegro that a suit under Bivens cannot be predicated on a disagreement with office practices, and also that sovereign immunity shields the officers from liability in their official capacities.
The case is Parker v. Manzano, 24-1723.
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