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Graber v. Dales

United States District Court, E.D. Pennsylvania

October 1, 2019



          RUFE, J.

         Plaintiff Jeremy Graber alleges that his First and Fourth Amendment rights were violated when he was arrested and charged with a federal offense during a protest at the Democratic National Convention. Defendant Michael Boresky, a Secret Service agent, has moved to dismiss all claims against him.

         I. Background

         The Democratic National Convention was held at the Wells Fargo Center in Philadelphia, Pennsylvania on July 25-27, 2016.[1] The Department of Homeland Security designated the Convention as a National Special Security Event, meaning an event that may be a target for terrorism or other criminal activity.[2] Accordingly, the Secret Service managed security for the Convention, [3] including setting up a security fence around the event.[4]

         Throughout the Convention, various groups of protesters gathered outside to demonstrate.[5] On the evening of July 27, a protester breached the security fence near the corner of Broad Street and Pattison Avenue by cutting the fence with bolt cutters.[6] Several protesters entered the secure zone through the damaged fence and were arrested.[7]

         Plaintiff alleges that at the time the fence was breached, he was standing nearby, but did not assist the breach or follow the other protesters into the secure area.[8] Nevertheless, Plaintiff alleges, Philadelphia police officer Joel Dales “forcibly grabbed” Plaintiff, pulled him through the crowd, and began “illegally searching” Plaintiff's pockets assisted by several other Philadelphia police officers.[9] Finding three small knives in Plaintiff's possession, the officers allegedly pulled Plaintiff past the fence and into the secure area, where they handcuffed him and searched him again.[10] Plaintiff was transported with six other arrested protesters to the Federal Detention Center, where he was detained overnight.[11]

         The following day, Defendant Michael Boresky, a Secret Service agent, filed an affidavit with a magistrate judge seeking a federal arrest warrant for Plaintiff and the other protesters and initiated a criminal complaint against them for knowingly entering the restricted grounds of the Convention in violation of 18 U.S.C. § 1752(a)(1).[12] On the basis of the complaint and affidavit, the magistrate judge ordered Plaintiff detained pending trial.[13] Within days, however, Plaintiff was released after footage of the protest confirmed that Plaintiff never intentionally entered the secure zone, and the government dismissed the charges against him shortly thereafter.[14]

         Plaintiff has sued the Philadelphia police officers under § 1983 and asserts claims against Defendant Boresky, the only federal defendant, pursuant to Bivens v. Six Unknown Federal Narcotics Agents.[15]

         II. Legal Standard

         A. Rule 12(b)(1)

         Under Federal Rule of Civil Procedure 12(b)(1), a party may seek dismissal of an action for lack of subject matter jurisdiction. The plaintiff has “the burden of proof that jurisdiction does in fact exist.”[16] Sovereign immunity is a proper basis for a 12(b)(1) motion to dismiss because federal courts lack jurisdiction over suits against the United States except where it has consented to be sued.[17]

         B. Rule 12(b)(6)

         Under Federal Rule of Civil Procedure 12(b)(6), a party may seek dismissal of an action for failure to state a claim upon which relief may be granted. To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'”[18]

         In evaluating a Rule 12(b)(6) motion, the court “must accept all factual allegations in the complaint as true, construe the complaint in the light favorable to the plaintiff, and ultimately determine whether plaintiff may be entitled to relief under any reasonable reading of the complaint.”[19] The court need not accept as true legal conclusions, even those couched as factual allegations.[20] The Rule 12(b)(6) inquiry is generally limited to the material in the complaint itself, but courts may also consider exhibits attached to the complaint, undisputedly authentic documents upon which the complaint is based, and matters of public record.[21]

         III. Discussion

         A. Motion to Dismiss Under Rule 12(b)(1)

         Plaintiff sued Defendant Boresky in both his personal and official capacity for violations of his First and Fourth Amendment rights and conspiracy to violate his First and Fourth Amendment rights. Defendant Boresky has moved to dismiss the claims against him in his official capacity for lack of subject matter jurisdiction.

         Claims against government officers in their official capacity are claims against the government itself.[22] The United States enjoys sovereign immunity from suit except where it consents to be sued.[23] In the absence of such consent, federal courts lack jurisdiction over suits against the United States.[24] Since the United States has not waived sovereign immunity for constitutional tort claims, [25] the Court lacks subject matter jurisdiction, so Plaintiff's official-capacity claims against Defendant Boresky will be dismissed.[26]

         B. Motion to Dismiss Under Rule 12(b)(6)

         1. Fourth Amendment Claim a. Bivens Analysis

         Plaintiff first alleges that Defendant Boresky violated his Fourth Amendment rights. Because Defendant Boresky is a federal agent, this constitutional claim is viable only if a Bivens cause of action exists-if, in other words, the Court implies a private right of action directly under the Constitution.[27] Expanding the Bivens remedy, however, “is now a ‘disfavored' judicial activity, ”[28] and the Supreme Court has “repeatedly refused” to extend Bivens beyond the three contexts in which it has explicitly recognized an implied right of action.[29] Those three contexts are “violations of the Fourth Amendment's right against unreasonable searches and seizures” as recognized in Bivens itself; gender discrimination in employment under the Due Process Clause of the Fifth Amendment; and inadequate prison medical care (and certain other conditions-of-confinement claims) under the Cruel and Unusual Punishments Clause of the Eighth Amendment.[30]

         In Ziglar v. Abbasi, the Supreme Court provided a two-step analytic framework for determining whether to “extend a Bivens-type remedy.”[31] First, courts must consider whether the claim presents a “new Bivens context, ” that is, whether “the case is different in a meaningful way from previous Bivens cases decided by” the Supreme Court.[32] A case might differ meaningfully, and thus represent a “new context, ” because of “the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; [and] the risk of disruptive intrusion by the Judiciary into the functioning of other branches[.]”[33]

         If the context is new, courts consider whether any “special factors counsel[] hesitation” in extending a Bivens remedy.[34] “There may be many such factors, but two are particularly weighty: the existence of an alternative remedial structure and separation-of-powers principles.”[35] Courts also consider “whether a claim addresses individual conduct or a broader policy question” and “whether national security is at stake, ” among other factors.[36] The central question at which all these considerations aim is “whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.”[37]

         Plaintiff alleges that Defendant Boresky violated his Fourth Amendment rights by filing an affidavit in support of an arrest warrant that resulted in his unconstitutional detention. Whether this presents a new Bivens context is a perplexing question after Abbasi.[38] On one hand, Plaintiff's claims seem to challenge precisely the kind of core, run-of-the-mill Fourth Amendment activity for which a Bivens cause of action has always been thought to be available-the seizure of a person without probable cause by a federal agent, just as in Bivens itself.[39] On the other hand, Abbasi made clear that even relatively trivial factual differences might make a context new.[40] Here, Defendant Boresky was the affiant on the arrest warrant, not the on-scene arresting officer; he is a Secret Service agent, not a federal narcotics agent; and, Defendant Boresky argues, Plaintiff's arrest outside the Convention-an event attended by the President, Vice President, and Democratic presidential nominee-has a national-security dimension that the typical Fourth Amendment Bivens claim lacks.[41]

         Whether these differences are “meaningful” is a close call. Seeking an arrest warrant from a magistrate judge is different from personally handcuffing a suspect, but both are part and parcel of the seizure of a person.[42] As to the federal agency involved, while it is true that “as part of the new-context analysis, the Abbasi Court ‘refused to extend Bivens to any . . . new category of defendants, '”[43] the Court notes that the federal agency whose officers were sued in Bivens no longer exists.[44] Thus, a different agency name on the back of an officer's windbreaker, standing alone, seems insufficient to constitute a new context.[45]

         Even if Plaintiff's claim is different enough from Bivens itself to be called a new context, however, the special factors counselling hesitation pressed by Defendant Boresky are not persuasive. Defendant Boresky emphasizes that the Convention was “designated as a National Special Security Event, ” and that judicial intrusion into matters of national security raises separation-of-powers concerns.[46] This is certainly true of national security policy. If Plaintiff were challenging broader Secret Service procedures, or even case-specific decisions like the chosen location of the secure perimeter outside the Convention, that could counsel against extending a Bivens remedy.[47] But the connection to national security here is tenuous. Crucially, this case is unlike Abbasi, which sought relief against top Department of Justice officials including the Attorney General himself and thus implicated high-level policy decisions.[48] At this stage it appears that Plaintiff's claims do not implicate government policy at all; rather, Plaintiff is merely challenging the constitutionality of a one-off arrest. In other words, this is a “straightforward case against a single low-level federal officer.”[49] The Supreme Court warned in Abbasi that “national-security concerns must not become a talisman used to ward off inconvenient claims.”[50] The proper focus here is the concrete actions Plaintiff challenges in this case, which amount to ordinary criminal law enforcement.

         Nor does this case concern the life-or-death snap judgments that Secret Service agents must sometimes make while protecting high-level government officials. The potential for chilling decisive action in the course of protecting Presidents would indeed give the Court pause.[51] Plaintiff's claim instead concerns the decision-made with the benefit of at least half a day of investigation, and while the suspect was already in custody-to seek an arrest warrant from a magistrate judge, an altogether routine task for any law enforcement officer.

         Finally, Congress's failure to provide an explicit damages remedy despite its “involvement in shaping the Secret Service and national security events” is not especially telling in this case.[52] When Congress has legislated extensively in a particular area without creating a damages remedy, that can indicate that congressional inaction was intentional.[53] Abbasi, however, linked this concept of meaningful inaction to the inappropriateness of challenging high-level policy through a Bivens suit.[54] Because high-level policy decisions are likely to attract congressional attention, the Court explained in Abbasi, it was particularly “difficult to believe that ‘congressional inaction' was inadvertent.”[55] Here, Plaintiff does not challenge Secret Service policy, but rather alleges individual, low-level misconduct, which is far likelier to escape congressional notice.[56] The handful of statutes creating the Secret Service and governing its mandate[57] cannot be compared to Congress's “frequent and intense” attention to the prevention of terrorism in the wake of the September 11, 2001 attacks.[58] Moreover, given that Plaintiff's claim is so close to the core of Bivens itself, it is particularly unlikely that Congress meant to preclude a damages remedy by its silence.

         As for alternative remedies, Defendant Boresky argues that the Federal Tort Claims Act and the availability of relief against the Philadelphia police officers under § 1983 are enough for Plaintiff. But “the existence of an FTCA remedy does not foreclose an analogous remedy under Bivens, ”[59] since it is “crystal clear that Congress intended the FTCA and Bivens to serve as parallel and complementary sources of liability.”[60] And the Court is not aware of any precedent (and Defendant has provided none) holding that the availability of relief against other individual officers should preclude a Bivens-type remedy.

         While Abbasi disallowed challenges to “large-scale policy decisions” through a Bivens suit, it did not call into question “the continued force, or even the necessity, of Bivens in the search-and-seizure context in which it arose.”[61] Indeed, the Court made clear that a Bivens cause of action remains available where it is most needed-in “individual instances of . . . law enforcement overreach” for which the remedy is “damages or nothing.”[62] At this early stage of Plaintiff's lawsuit, his claim appears to land squarely within that category.

         b. Qualified Immunity Analysis

         Because the Court has determined that a Bivens cause of action is available for Plaintiff's Fourth Amendment claim, the question remains whether Defendant Boresky is entitled to qualified immunity. To overcome the defense of qualified immunity, a plaintiff must plausibly “allege facts showing that the conduct of each individual federal defendant (1) ‘violated a statutory or constitutional right, and (2) that the right was “clearly established” at the time of the challenged conduct.'”[63] The Court concludes that Plaintiff has adequately alleged a Fourth Amendment violation and that the issue of qualified immunity cannot be resolved at this stage.

         First, Plaintiff has plausibly alleged that Defendant Boresky's conduct violated the Fourth Amendment. Fairly read, the complaint alleges the following: Plaintiff was arrested without probable cause by Philadelphia police officers while exercising his First Amendment rights at a protest outside the Convention; Plaintiff was held in custody overnight; and the following day, Defendant Boresky filed an affidavit in support of a federal warrant for Plaintiff's arrest, the content of which is revealed by video footage of the event to be “completely false.”[64] Taking into consideration trial testimony in the underlying criminal case against the other six protesters arrested with Plaintiff, as Defendant Boresky would have the Court do, [65] it also appears that Defendant Boresky was not at the scene when Plaintiff was arrested, but rather relied solely on information provided to him by one Special Agent McCaa (who is not named as a defendant) in preparing the affidavit.[66]

         “The legality of a seizure based solely on statements issued by fellow officers depends on whether the officers who issued the statements possessed the requisite basis to seize the suspect.”[67] Liability for an unconstitutional seizure thus passes directly through an officer in Defendant Boresky's position-an affiant without first-hand knowledge of the underlying facts-and turns on whether the officer on whose statements he relied had probable cause himself. In other words, the collective knowledge doctrine is no help to Defendant Boresky, since facts and circumstances actually supporting probable cause were allegedly not within the collective knowledge of the officers with whom he was collaborating and communicating.[68]Since Plaintiff has adequately alleged that the officers on the scene lacked probable cause to arrest him, he has stated a claim against Defendant Boresky as the affiant as well.

         Second, even if the on-scene officers in fact lacked probable cause to arrest Plaintiff, Defendant Boresky would still be entitled to qualified immunity if it were “objectively reasonable for him to believe, on the basis of [those officers'] statements, that probable cause for the arrest existed.”[69] That inquiry, however, necessarily requires examining the content of the statements on which Defendant Boresky relied.[70] Since those statements are not in the record at this stage, it is not possible to say whether it was objectively reasonable for Defendant Boresky to rely on them.[71] The Court is mindful that qualified immunity is an immunity from suit, not merely a defense to liability, [72] and that resolving the issue as early as possible is therefore desirable. In this case, however, it appears that at least some discovery will be required to answer this question.

         2. First Amendment Claim

         Plaintiff next claims that Defendant Boresky violated his First Amendment rights by interfering with his protected speech in the form of participation in a political protest outside the Convention.[73] Although the Amended Complaint is not entirely clear in this respect, Plaintiff seems to assert that his arrest unconstitutionally “terminat[ed]” his protected speech in the form of “demonstrat[ing] and gather[ing] in protest, ”[74] rather than that he was arrested in retaliation for the content of his speech. In other words, because Defendant Boresky allegedly effected Plaintiff's arrest without probable cause, and the arrest interrupted the exercise of his First Amendment right to gather in protest, the illegality of the arrest is ...

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