Pettibone v. Russell
| Decision Date | 02 February 2023 |
| Docket Number | 22-35183 |
| Parties | MARK PETTIBONE; FABIYM ACUAY, AKA Mac Smiff; ANDRE MILLER; NICHOL DENISON; MAUREEN HEALY; CHRISTOPHER DAVID; DUSTON OBERMEYER; JAMES MCNULTY, Plaintiffs-Appellees, v. GABRIEL RUSSELL, in his individual and official capacity, Defendant-Appellant, and BLACK MILLENIAL MOVEMENT, an organization; ROSE CITY JUSTICE, INC., an Oregon nonprofit corporation, Plaintiffs, and JOSEPH R. BIDEN; CHAD F. WOLF; U.S. DEPARTMENT OF HOMELAND SECURITY; UNITED STATES MARSHALL SERVICE; ALEJANDRO N. MAYORKAS; JOHN DOES, 1-200; in their individual capacities, Defendants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Argued and Submitted December 9, 2022 Seattle, Washington
Appeal from the United States District Court No. 3:20-cv-01464-YY for the District of Oregon Michael H. Simon, District Judge Presiding
Brian J. Springer (argued) and Mark B. Stern, Attorneys, Appellate Staff; Scott E. Asphaug and Natalie K. Wight, United States Attorneys; David G. Cutler, Trial Attorney; Glenn Greene Senior Trial Attorney; Brian M. Boynton, Principal Deputy Assistant Attorney General; United States Department of Justice, Civil Division, Washington, D.C.; for Defendants-Appellant.
Rachel C. Lee (argued), Christopher Rifer, Crystal S. Chase, Jeremy D. Sacks, Per A. Ramfjord, Amy Edwards, Jacob C. Goldberg Todd A. Hanchett, and Joel A. Mullin, Stoel Rives LLP Portland, Oregon; Kelly K. Simon, and Rachel Dallal Gale, ACLU of Oregon, Portland, Oregon; for Plaintiffs-Appellees.
Before: M. Margaret McKeown, Eric D. Miller, and Salvador Mendoza, Jr., Circuit Judges.
Reversing the district court's order denying defendant's motion to dismiss, the panel held that Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), did not provide a cause of action for protesters who alleged that Gabriel Russell, then the Director of the Federal Protective Service's Northwest Region, ordered or acquiesced in subordinates' unlawful arrests and uses of excessive force during protests outside the federal courthouse in Portland, Oregon in the summer of 2020.
The panel first held that it had jurisdiction over this interlocutory appeal. The Supreme Court's opinion in Wilkie v. Robbins, 551 U.S. 537 (2007), establishes that, in an interlocutory appeal from a denial of qualified immunity, courts necessarily have jurisdiction to decide whether an underlying Bivens cause of action exists.
Applying the two-step analysis set forth in Egbert v. Boule, 142 S.Ct. 1793 (2022), the panel held that a Bivens remedy could not be extended to this case because it presented a new context, and at least two independent factors indicated that the court was less equipped than Congress to determine whether the damages action should proceed.
This case differed from Bivens-the only Supreme Court case recognizing an implied damages remedy for Fourth Amendment violation because (1) defendant Gabriel Russell, a high-level supervisor, was of a different rank than the agents in Bivens; (2) Russell's alleged actions, which consisted of ordering or acquiescing in unconstitutional conduct, took place at a higher level of generality than the actions of the agents in Bivens; and (3) the legal mandate under which Russell acted differed from that of the agents in Bivens in that Russell was directing a multi-agency operation to protect federal property and was carrying out an executive order. And because Russell was carrying out an executive order, providing a Bivens remedy in this context would carry a greater "risk of disruptive intrusion by the Judiciary into the functioning of other branches" than was present in Bivens. This case also differed from Carlson v. Green, 446 U.S. 14 (1980), which involved prison officials and a claim of cruel and unusual punishment under the Eighth Amendment.
Allowing a Bivens action to proceed in this case could expose sensitive communications between Russell and other high-level executive officers. Moreover, Congress had afforded plaintiffs an alternative remedy that independently foreclosed a Bivens action. Because plaintiffs had no cause of action under Bivens, the panel did not consider whether Russell would be entitled to qualified immunity.
During the summer of 2020, Mark Pettibone protested outside the federal courthouse in Portland, Oregon. He alleges that federal officers unlawfully arrested protesters and used excessive force, including by indiscriminately using tear gas against peaceful protesters. Together with other protesters, he brought this action against Gabriel Russell, then the Director of the Federal Protective Service's Northwest Region, under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). The district court denied Russell's motion to dismiss. We conclude that no Bivens cause of action is available in this case, and we therefore reverse.
Because this is an appeal from an order resolving a motion to dismiss, we assume the truth of the facts alleged in the complaint. Ellis v. Salt River Project Agric. Improvement &Power Dist., 24 F.4th 1262, 1266 (9th Cir. 2022).
Following the murder of George Floyd in Minneapolis in May 2020, numerous protests took place across the country, including near the Mark O. Hatfield United States Courthouse in Portland. In June 2020, the President issued an executive order stating that "[o]ver the last 5 weeks, there has been a sustained assault on the life and property of civilians, law enforcement officers, [and] government property" throughout the country and attributing this to "[a]narchists and left-wing extremists [who] have sought to advance a fringe ideology that paints the United States of America as fundamentally unjust and have sought to impose that ideology on Americans through violence and mob intimidation." Exec. Order No. 13,933, § 1, 85 Fed.Reg. 40081 (June 26, 2020), revoked, Exec. Order No. 14,029, 86 Fed.Reg. 27025 (May 14, 2021). The order directed the Secretary of Defense, the Attorney General, and the Secretary of Homeland Security to provide "personnel to assist with the protection of Federal monuments, memorials, statues, or property." Id. § 5, 85 Fed.Reg. at 40083. The federal government subsequently deployed more than 100 law enforcement officers from Customs and Border Protection, Immigration and Customs Enforcement, and the United States Marshals Service to Portland, in what officials called "Operation Diligent Valor." Russell oversaw the officers in Portland.
Pettibone alleges that officers involved in Operation Diligent Valor arrested protesters "without any lawful basis" and also "indiscriminately used violent tactics on lawful protesters," including by "shooting them in the head and body with impact munitions and pepper balls, spraying them directly in the face with pepper spray, shoving them to the ground, hitting and beating them with batons, [and] firing massive clouds of tear gas at them." Pettibone alleges that "[t]he tactics used by the officers went beyond what was required for their limited mission of protecting federal property and reflected a policy designed to retaliate against and to deter the protesters because of their views and beliefs."
The complaint includes specific allegations of allegedly unlawful conduct directed at individual plaintiffs. For example, Pettibone alleges that he was "snatched off the street and put in an unmarked van by unidentified men in military-style uniforms who did not explain their actions . . . and held him in jail with no explanation." Another plaintiff alleges that although he "wore distinctive clothing that identified him as a member of the press," he was injured "when an unidentified federal officer shot him in the head with an impact munition while he was lawfully attending the protests." And another alleges that while "[s]he merely stood in a line of women with arms linked," a tear-gas canister was "hurled into her head, causing a three-inch gash to her forehead."
Although Russell did not personally carry out any of the arrests or uses of force, Pettibone alleges that Russell "knew or reasonably should have known that officers . . . would cause and were causing the arrests of protesters and the repeated use of excessive force against protesters." According to the complaint, Russell "personally observed protesters in Portland and the actions of federal officers from an incident command post or an emergency operations center," and he "monitored social media and reviewed publicly available videos showing events at the protests." Despite Russell's awareness of officers' uses of force, Pettibone alleges, "Russell knowingly failed to order any change in tactics or response to avoid unconstitutional injury to peaceful protesters." Pettibone also alleges that Russell "implemented tactics that included identifying and arresting individual protesters" and that he directed the arrest of certain protesters, including Pettibone.
Pettibone brought this action in the District of Oregon against various federal agencies and officers, including Russell. As relevant to this appeal, the complaint asserted Bivens claims against Russell, alleging that he violated the Fourth Amendment. Russell moved to dismiss on the grounds that no Bivens remedy is available and that, even if it were, Russell is entitled to qualified immunity. The district court rejected both arguments and denied the motion.
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