Hicks v. Ferreyra

• Decision Date: 14 July 2020
• Docket Number: No. 19-1697,19-1697
• Citation: 965 F.3d 302
• Parties: Nathaniel HICKS, Plaintiff – Appellee, v. Officer Gerald L. FERREYRA, in his individual capacity; Officer Brian A. Phillips, in his individual capacity, Defendants – Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

965 F.3d 302

Nathaniel HICKS, Plaintiff – Appellee,

v.Officer Gerald L. FERREYRA, in his individual capacity; Officer Brian A. Phillips, in his individual capacity, Defendants – Appellants.

No. 19-1697

United States Court of Appeals, Fourth Circuit.

Submitted: May 18, 2020

Decided: July 14, 2020

Andrew C. White, Jodie E. Buchman, SILVERMAN, THOMPSON, SLUTKIN & WHITE, Baltimore, Maryland, for Appellants. Jia Cobb, Yiyang Wu, RELMAN, DANE & COLFAX PLLC, Washington, D.C., for Appellee.

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 Fourth Amendment. Hicks filed suit for damages against the federal officers, invoking the implied cause of action recognized in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The officers moved for summary judgment on qualified immunity grounds. The district court denied their motion, finding that the factual record, viewed in the light most favorable to Hicks, precluded an award of qualified immunity on summary judgment.

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 , ––– U.S. ––––, 137 S. Ct. 1843, 1857, 198 L.Ed.2d 290 (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 his credentials, including a photograph of himself and a description of his mission. Ferreyra seized Hicks's service weapon and credentials, and took them back to his police cruiser for verification. Ferreyra since has acknowledged that Hicks's credentials "looked legit," and that he had no "reason to doubt" their validity. Hicks v. Ferreyra , 396 F. Supp. 3d 564, 578 (D. Md. 2019).

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 Md. Code Ann., Crim. Law § 4-203(b)(1)(i) ; 18 U.S.C. § 3056(c)(1)(B), Ferreyra continued detaining Hicks while calling for additional officers to report to the scene. Next to arrive was Brian Phillips, also an officer with the USPP. And although Phillips, too, soon learned that Hicks was a Secret Service agent, Phillips assisted in Hicks's continued detention while Ferreyra called for a third USPP officer – this time, a supervisor – to come to the scene as well. Ferreyra since has confirmed that he had no intention of arresting Hicks when calling his supervisor. But Ferreyra and Phillips continued to detain Hicks and to maintain possession of Hicks's service weapon and credentials. By now, the motorcade that Hicks had been assigned to lead had come and gone.

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 Md. Code Ann., Transp. § 21-1124.2(b)(2)(i) )). Although Phillips concedes that he recognized Hicks when he approached his car, he nevertheless demanded Hicks's license and registration and detained him further before ultimately releasing him.

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 Fourth Amendment rights by unlawfully seizing him twice without probable cause or reasonable suspicion. The officers ultimately moved for summary judgment on Hicks's Fourth Amendment Bivens claim, alleging that they were entitled to qualified immunity. At no point did the officers question whether Hicks could avail himself of the implied cause of action for damages recognized by the Supreme Court in Bivens .

The district court denied the officers’ motion for summary judgment on Hicks's Fourth Amendment claims, finding that the officers had not demonstrated their entitlement to qualified immunity as a matter of law.¹ The court began by outlining the law governing the qualified-immunity inquiry, which is the same under Bivens as in the § 1983 context. See Hicks , 396 F. Supp. 3d at 574 (citing Wilson v. Layne , 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) ). 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 Fourth Amendment violation. Hicks , 396 F. Supp. 3d at 574. But under either prong of the inquiry, the court concluded, the officers bear the burden of proving their entitlement to qualified immunity. See id. at 575.

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, 105 S.Ct. 1568, 84 L.Ed.2d 605 (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, 105 S.Ct. 1568 ).

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...