On Friday, the U.S. Court of Appeals for the D.C. Circuit affirmed the dismissal of Bivens actions filed against former Attorney General WIlliam Barr and various federal law enforcement officers over their conduct in clearing protestors from Lafayette Park in June 2020.
The opinion for the panel in Buchanan v. Barr was written by Senior Judge David Sentelle (in what was likely his last opinion for the D.C. Circuit). The opinion was joined by Judges Wilkins and Walker, each of whom also wrote a separate concurring opinion.
The case was rather straightforward. Judge Sentelle summarized it as follows:
Appellants, individual protestors and Black Lives Matter D.C., brought these consolidated actions against federal law enforcement officers, alleging that officers' actions in clearing protestors from Lafayette Park in June 2020 violated their First, Fourth, and Fifth Amendment rights and seeking damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Appellees, former Attorney General Barr and various named U.S. Park Police officers, moved to dismiss the claims, arguing that a Bivens remedy is unavailable in this context. The district court granted the motions, and this appeal followed. Applying Supreme Court precedent, we hold that Appellants' claims arise in a new context and that special factors counsel hesitation against extending the availability of Bivens claims to that context. Accordingly, we affirm.
As Judge Sentelle explains, the Supreme Court has never overturned Bivens, but it has made clear that allowing such claims is "a disfavored judicial activity." Claims that are squarely on all fours with Bivens or one of a handful of other cases may proceed, but lower courts should rarely allow such suits when they arise in a "new context." This is a high hurdle to clear, and one that the plaintiffs could not surmount in this case.
Judge Wilkins wrote separately to stress some of the separation-of-powers concerns that arose in this particular case. Judge Walker concurred separately to suggest that the lack of a federal Bivens remedy might not preclude all relief.
Judge Walker's concurring opinion begins:
Protesters say federal officers violated their constitutional rights by forcibly dispersing a demonstration outside the White House. So they sued for damages, claiming that the Constitution gives them permission to bring their suit. See Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
But as the Court's opinion explains, the protesters' claims do not fit any recognized cause of action under the Constitution. And gone are the days when federal courts could invent new remedies to redress the protesters' injuries. See Egbert v. Boule, 142 S. Ct. 1793, 1803 (2022).
Yet that does not mean the protesters have no way to recover. For most of our history, those injured by federal officers' unconstitutional conduct could sue for damages in state court. The Framers saw state common-law suits as an important check on federal misconduct.
Some have assumed that those suits are now precluded by the Westfall Act. It bars many "civil action[s] . . . for money damages" filed to redress "injury or loss . . . resulting from" federal officers' conduct. 28 U.S.C. § 2679(b)(1). But it also has an exception. It does not bar "a civil action . . . brought for a violation of the Constitution of the United States." Id. § 2679(b)(2)(A).
That exception might preserve state tort suits "brought" to remedy constitutional injuries. Reading the Act that way accords with Founding-era principles of officer accountability and closes the remedial gap left by today's narrow approach to remedies under the Constitution — ensuring relief for those unconstitutionally injured by federal officers.
Judge Walker makes clear that he is "not certain" this alternative avenue is actually available, but he has effectively invited potential plaintiffs to give it a try.
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