The Volokh Conspiracy
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An interesting federal district court opinion from last month (Linlor v. Polson) about whether a plaintiff could sue for damages based on allegedly excessive use of force in an airport checkpoint search:
On March 10, 2016, Plaintiff travelled through Washington Dulles International Airport. Plaintiff encountered Defendant, a Transportation Security Officer, while attempting to pass through airport security. Defendant instructed Plaintiff to surrender certain documents Plaintiff had on his person before passing through the airport's screening equipment. Plaintiff refused and was therefore required to submit to a manual pat down conducted by Defendant.
Plaintiff stepped onto the rug reserved for that purpose, placing his feet in the footprint outlines. Defendant then instructed Plaintiff to widen his stance unnecessarily. At that point, while Plaintiff was vulnerable, Defendant "rammed his hand into the genitals of the Plaintiff, causing the Plaintiff to bend over and step away in pain." Plaintiff alleges that Defendant took this action out of anger, either intentionally or recklessly, and that Defendant subsequently laughed and refused to apologize. Police were summoned after Plaintiff complained of "aggravated sexual battery," but the police officers refused to take any action against Defendant. Defendant's coworkers stone-walled Plaintiff when he attempted to gather the names of witnesses.
Plaintiff sued for damages, claiming that the search violated the Fourth Amendment, and the court had to first decide whether such a lawsuit was legally authorized; Congress has expressly authorized (in the 42 U.S.C. § 1983 statute) lawsuits against officials who violate constitutional rights while engaging in state law enforcement, but hasn't generally done the same as to federal law enforcement. The Supreme Court has itself recognized a basis for lawsuits, in the famous Bivens case, but it has also cut back on that in recent decades:
By itself, "[t]he Constitution does not ordinarily provide a private right of action for constitutional violations by federal officials." The Supreme Court, however, held in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971), that "violation of [the Fourth Amendment] by a federal agent … gives rise to a cause of action for damages" directly under the Constitution, without the need for a congressionally created remedy.
Since then, Bivens has been applied sparingly, as the Supreme Court has "responded cautiously to suggestions that Bivens remedies be extended into new contexts." The Court has made clear that no Bivens remedy should be implied where "any alternative, existing process for protecting the interest [at issue] amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages." Bivens relief is further limited to situations in which "no special factors counsel[ ] hesitation."
Against this backdrop, "[i]t is clear that expansion of a Bivens-based cause of action … is the exception, not the rule." Indeed, as is often observed, since Bivens the Supreme Court has only twice implied similar remedies in new contexts. See Davis v. Passman (1979) (finding a Bivens remedy for violation of the Due Process Clause); Carlson v. Green (1980) (finding a Bivens remedy for violation of the Cruel and Unusual Punishment Clause).
Moreover, "Bivens actions are not recognized Amendment by Amendment in a wholesale fashion" but "are context-specific." "For example, a Bivensaction alleging a violation of the Due Process Clause of the Fifth Amendment may be appropriate in some contexts, but not in others." Accordingly, the fact that Plaintiff invokes the Fourth Amendment—the subject of Bivens itself—does not end the Court's inquiry as to whether a Bivens remedy is appropriate here.
Nonetheless, though the court concluded that this case presents a new context, so that a special justification for applying Bivens is required, the court found that such justification was present here:
A Bivens claim will not lie where "any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages." Defendant points to three alternative remedial processes, arguing that they foreclose a Bivens remedy here. The Court disagrees. Indeed, the Court has little difficulty concluding that the alternatives suggested by Defendant are no alternatives at all.
Defendant first argues that the availability of claim under the Federal Tort Claims Act (FTCA) counsels against implying a Bivens remedy here. But as Defendant acknowledges, the Supreme Court has squarely held that the FTCA does not provide an alternative remedial process bearing on the availability of a Bivens remedy. …
Defendant next argues that "if Plaintiff wished to challenge TSA's pat-down screening procedures as applied to him by Officer Polson as a violation of the Fourth Amendment, he could have filed a petition for review of those procedures in an appropriate court of appeals pursuant to 49 U.S.C. § 46110." Plaintiff does not, however, seek "review" of TSA procedures or any "order issued by" an aviation authority. … Rather, Plaintiff challenges a discrete instance of abuse not authorized by the TSA—to wit, Defendant's alleged use of excessive force in intentionally and gratuitously striking Plaintiff's groin. Plaintiff seeks compensation for a past wrong, not prospective relief from considered agency action. The statute Defendant cites is simply inapplicable to the case at bar.
Finally, Defendant argues that Plaintiff may seek redress through the TSA's "Contact Center," which "passengers and others may use in order to register their complaints and concerns via phone, email, or internet submission form." Judging by Defendant's description, this is, essentially, a consumer complaint hotline. It is not clear what, if any, relief a complainant may receive. It appears that the "Contact Center" affords individuals only the bare opportunity to make the TSA aware of a complaint. At that point, the TSA will unilaterally direct the complaint to the "correct TSA recipient … for additional consideration and, if deemed necessary, action."
This meager opportunity is not the sort of alternative process that provides a "convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages." …
Defendant argues that special factors are presented here because this case implicates national security. While the Court agrees that appreciable national security concerns would, if raised, preclude a Bivens remedy here, Defendant does not adequately explain how this case presents such concerns.
As an initial matter, the Court notes that Defendant consistently and erroneously refers to this case as arising in the "national security context." This conflates two distinct aspects of the Bivens analysis. A "context," for purposes of implying a Bivens remedy, is a relatively narrow set of circumstances and legal issues. The relevant context here is a TSA officer's alleged use of excessive force during an airport security screening. "National security" is a high-level description of a special factor that might arise and counsel hesitation in this context, not a context unto itself.
Defendant's Motion does little to tie specific national security concerns to the context under consideration. Rather, it rests primarily upon generalizations about the sui generis nature of the airport setting. Defendant is correct that Courts have consistently recognized airports as loci of special security concerns. But that does not mean generic national security concerns bar any constitutional claim arising at an airport. The question is not whether airports present special security concerns—they do—but whether those concerns have any particular bearing on the context at issue in this case. …
Defendant does not cite, and the Court cannot see, any other reason why national security concerns would counsel hesitation to imply a Bivens remedy here. Plaintiff alleges that Defendant employed excessive force during a security screening, deliberately and gratuitously striking Plaintiff in the groin. This is not conduct that the TSA has deemed necessary, or even desirable, to protect national security. Indeed, the TSA expressly forbids its officers to engage in such behavior. …
And the court then rejected the defendant's argument that, even if the facts were as plaintiff alleged, defendant was immune as a matter of law under the "qualified immunity" available to government officials in many cases. Qualified immunity is unavailable when the defendant's actions violate a clearly established right, and here the right was clearly established (again, assuming plaintiff's factual allegations were correct):
Defendant next contends that he is entitled to qualified immunity. In evaluating whether Defendant is entitled to qualified immunity, the Court must determine "(1) whether the plaintiff has established the violation of a constitutional right, and (2) whether that right was clearly established at the time of the alleged violation." … [The Court finds that, if the facts are as Plaintiff describes, Defendant is not] entitled to qualified immunity. …
Defendant argues that "even if this Court could construe Plaintiff's allegations to include a claim that Officer Polson utilized excessive force (outside of the alleged hand 'ramming') during the patdown, the intrusiveness during the standard pat-down screening procedure was minimal, and the manner was routine." It is not clear, however, why the Court would look beyond the "hand 'ramming'" to find a Fourth Amendment violation, as that is clearly the basis of Plaintiff's Fourth Amendment claim.
Defendant's Reply Brief is little better. In it, Defendant appears to ask the Court to disregard the allegations of Plaintiff's Amended Complaint and find "that contact with Plaintiff's genitals, if any at all, was incidental and occurred through the course of a typical security pat-down." The Court, however, is not free to simply disbelieve the clear factual allegations of Plaintiff's Amended Complaint on a [motion to dismiss for failure to state a legally sufficient claim]. Plaintiff claims that Defendant intentionally, gratuitously struck him in the groin on a specific date in a specific location. Whether or not that is so can be resolved only on summary judgment or at trial.
Defendant's oratorical calisthenics appear calculated to avoid simple questions with obvious answers: First, does the Fourth Amendment permit a federal officer to gratuitously strike an individual during a search? No. Second, was that clearly established in the law at the time? Yes. …
Taking the allegations of Plaintiff's Complaint as true, Plaintiff was not suspected of committing any crime, posed no threat to Defendant or others, and fully complied with Defendant's instructions during the pat-down search. The search in question went well beyond what was necessary to detect contraband, and was not confined to that purpose. There was, in short, no legitimate government interest served by Defendant's alleged use of force to be weighed against Plaintiff's substantial interest in being free from an unreasonable seizure. Such an action is "objectively unreasonable," by any measure, and violates the Fourth Amendment. …
Whether or not the law has established "the specific degree of permissible intrusiveness of a security screening pat-down," it has clearly established the limits of force that may be used during a Fourth Amendment seizure. It is, and has long been, crystal clear that "officers using unnecessary, gratuitous, and disproportionate force to seize a secured, unarmed citizen, do not act in an objectively reasonable manner and, thus, are not entitled to qualified immunity." That is precisely what is alleged to have occurred here, and it makes little difference that it occurred in the course of an airport security screening. Frankly, it strains credulity for Defendant to claim that a reasonable federal officer would be surprised to learn that gratuitously striking an individual in the groin while searching them violates the Fourth Amendment.
In sum, Defendant is not entitled to qualified immunity based on the allegations of Plaintiff's Amended Complaint. The issue, of course, may—and perhaps should—be raised again on a motion for summary judgment, at which point the Court will be able to take into account a wider range of evidence.