Whether a Fourth Amendment excessive-force claim against a federal law enforcement officer in a public setting constitutes a 'new Bivens context' that precludes an implied damages remedy under the Supreme Court's Bivens jurisprudence

No question identified. : 28 U.S.C. §1254(1). A copy of the court of appeals’ opinion is attached as Exhibit 1, and a copy of the court’s denial of rehearing and rehearing en banc is attached as Exhibit 2. As explained below, counsel of record was retained at the rehearing stage below and has been heavily engaged with the press of other matters. The extension is necessary to permit counsel to properly prepare the petition for a writ of certiorari and to see to its printing and submission. 1. Just two Terms ago, this Court reiterated that courts considering a proposed claim for damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), must first ask whether the case involves any factual or legal differences that might alter the policy balance that justified creating an implied damages remedy in Bivens and the only two other cases in which the Court has implied damages actions—Carlson v. Green, 446 U.S. 14 (1980), and Davis v. Passman, 442 U.S. 228 (1979). See Egbert v. Boule, 596 U.S. 482, 492 (2022). If it does, the case presents a “new Bivens context” and courts must next ask “whether there is any rational reason (even one) to think that Congress is better suited to ‘weigh the costs and benefits of allowing a damages action to 299 proceed.’” Id. at 496, 498. “If there is even a single ‘reason to pause,’” at this second step, courts “may not recognize a Bivens remedy.” Id. at 492. 2. This case arises out of a putative Bivens claim based on a mid-day arrest of a drug dealer in the lobby of an Illinois hotel, pursuant to a lawful arrest warrant. Ex. 1 at 4-5. Applicant Agent Jeremy Henning arrived at the hotel to execute a warrant for the arrest of Donald Snowden on a methamphetamine distribution charge. Ex. 1 at 4. According to the complaint, Agent Henning had the hotel’s desk clerk summon Mr. Snowden to the lobby. Ex. 1 at 4. When Mr. Snowden arrived, Agent Henning allegedly assaulted him. Ex. 1 at 4. 3. Mr. Snowden, who was later convicted on the distribution charge, filed a pro se complaint against Agent Henning, asserting a Fourth Amendment excessive-force claim. Ex. 1 at 5. The district court granted Agent Henning’s motion to dismiss, concluding that the warrant and public setting presented a “new Bivens context” and that the Federal Tort Claims Act was an alternate remedy that counseled against extending Bivens. Ex. 1 at 6. 4. The Seventh Circuit reversed, finding no relevant difference between this case and Bivens. The court of appeals concluded that, as a Drug Enforcement Administration agent, Agent Henning “operated under the same legal mandate” as the narcotics officers in Bivens; that he was “the same kind of line-level” officer; and that “the legal landscape of excessive-force claims” like Snowden’s “is well settled.” Ex. 1 at 16. The Court so concluded notwithstanding “factual differences” between this case and Bivens: “[T]he alleged Fourth Amendment violations took place in different locations (a hotel lobby here, a home in Bivens),” and Agent Henning “had a warrant (the officers in Bivens did not).” Jd. at 18. To the Seventh Circuit, those distinctions were “not sufficient to affect the Bivens inquiry.” Ibid. 5. Agent Henning sought rehearing en banc, which the Seventh Circuit denied. Ex. 2. 6. The Seventh Circuit’s decision presents important issues for review. It is at odds with E'gbert’s admonition that “a plaintiff cannot justify a Bivens extension based on ‘parallel circumstances’ with Bivens” alone. 596 U.S. at 501. It ignores the legal, practical, and policy differences between law enforcement operations carried out in private homes and arrests, like the one at issue here, that are carried out in public spaces. And it deepens a circuit split, joining the Fourth Circuit against the First, Fifth, Eighth, and Ninth Circuits, each of which have held that searches or seizures outside the home present a new Bivens context.! 7. The issue is important. The (appropriate