Hicks v. Ferreyra et al

Filing 44

MEMORANDUM OPINION AND ORDER denying without prejudice 37 Motion to Dismiss or, in the Alternative, for Summary Judgment. Signed by Judge Paul W. Grimm on 4/11/2017. (jf3s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
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NATHANIEL HICKS,
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Plaintiff,
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v.

Case No.: PWG-16-2521
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OFFICER GERALD L. FERREYRA, et al.,
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Defendants.
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MEMORANDUM OPINION AND ORDER
Plaintiff Nathaniel Hicks, a Secret Service agent, filed suit against Defendants Gerald L.
Ferreyra and Brian Phillips, United States Park Police (“USPP”) officers, for detaining him
without probable cause twice, first for an hour along the highway after he showed them his
credentials, and then a second time shortly after the first. Compl., ECF No. 1. Special Agent
Hicks claims that Defendants violated his Fourth Amendment rights. Id. Asserting qualified
immunity, Defendants move to dismiss or for summary judgment insofar as Plaintiff’s claim is
based on the first detention. ECF No. 37.1 Because it is not clear from either the pleadings or
the scant record currently before me that Defendants had probable cause for Plaintiff’s continued
detention during the first stop, I will deny the motion.

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The parties fully briefed the motion. ECF Nos. 40, 41. A hearing is not necessary. See Loc.
R. 105.6. Plaintiff’s claim that Officer Ferreyra stopped him a second time without probable
cause, Compl. ¶ 14, is not subject to the pending Partial Motion to Dismiss or, in the Alternative,
for Summary Judgment. Defs.’ Mot. 2 n.1.

Background2
Plaintiff alleges that on July 11, 2015, while working as a Secret Service agent, he was in
a Secret Service-issued vehicle on the shoulder of Interstate 295 North, waiting to accompany
the motorcade for Department of Homeland Security Secretary Jeh Johnson. Compl. ¶¶ 2–4.
Officer Ferreyra, who was in uniform at the time, pulled over behind Plaintiff and approached
his vehicle with his weapon drawn. Id. ¶ 5. According to Officer Ferreyra, Special Agent Hicks
“was dressed in civilian clothes” and asleep in an unmarked vehicle that “was unwashed and had
a damaged exterior,” with “a loaded handgun lying on the passenger seat.” Ferreyra Aff. ¶¶ 4–8.
Special Agent Hicks claims that he “immediately and calmly identified himself as a United
States Secret Service Agent” and then “provided his federal law enforcement credentials to
Officer Ferreyra,” who inspected them, and Hicks “explained that he was on-duty and waiting to
lead an official motorcade of a Secret Service protectee.” Compl. ¶¶ 6–7.
Special Agent Hicks contacted his supervisors by phone, Officer Phillips arrived to assist
Officer Ferreyra, and Officer Phillips “told [Plaintiff] that he did not care” that Plaintiff’s
“supervisor was on the line.” Id. ¶¶ 35–36. Both officers “acknowledg[ed] that Special Agent
Hicks was, in fact, a federal law enforcement agent with the Secret Service.” Id. ¶¶ 7–8. Yet,
they continued to detain him for an hour, during which time the motorcade passed and they
would not allow the agent to join it. Id. ¶¶ 7–12. Then, USPP Sergeant T. F. Wallace arrived

2
  On a motion for summary judgment, I consider the facts in the light most favorable to Plaintiff

as the non-moving party, drawing all justifiable inferences in his favor. White v. Pauly, 137 S.
Ct. 548, 550 (2017); Ricci v. DeStefano, 557 U.S. 557, 585–86 (2009). Likewise, to determine
the availability of qualified immunity, I take the facts alleged “in the light most favorable to the
party asserting the injury,” that is, Plaintiff. Meyers v. Baltimore Cnty., 981 F. Supp. 2d 422, 429
(D. Md. 2013) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001), receded from on other
grounds in Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808 (2009)); see Queen v. Prince
George’s Cnty., 188 F. Supp. 3d 535, 544 (D. Md. 2016) (same).

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and “spoke with Special Agent Hicks’s supervisor (who was still on the line), admitted that
Offericers Ferreyra and/or Phillips had told him that Special Agent Hicks was a federal law
enforcement officer.” Id. ¶ 43. After that, Plaintiff was released. Id. ¶ 44. Plaintiff claims that,
in detaining him for an hour after he provided his credentials, Defendants violated his Fourth
Amendment rights. Id. ¶¶ 55–57. Defendants insist that they are entitled to qualified immunity,
and move to dismiss or, alternative, for summary judgment on that basis.
Standard of Review
Under Rule 12(b)(6), Plaintiff’s Complaint is subject to dismissal if it “fail[s] to state a
claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A complaint must contain “a
short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ.
P. 8(a)(2), and must state “a plausible claim for relief,” Ashcroft v. Iqbal, 556 U.S. 662, 678–79
(2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. Rule 12(b)(6)’s purpose “is to test the sufficiency of a complaint and not
to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”
Velencia v. Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012)
(quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)).
“Although a motion pursuant to Rule 12(b)(6) invites an inquiry into the legal sufficiency
of the complaint, not an analysis of potential defenses to the claims set forth therein, dismissal
nevertheless is appropriate when the face of the complaint clearly reveals the existence of a
meritorious affirmative defense,” such as qualified immunity. Occupy Columbia v. Haley, 738
F.3d 107, 116 (4th Cir. 2013) (quoting Brockington v. Boykins, 637 F.3d 503, 506 (4th Cir.2011)
(internal quotation marks omitted)). Thus, “[a] qualified immunity defense can be presented in a

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Rule 12(b)(6) motion, but, . . . when asserted at this early stage in the proceedings, ‘the defense
faces a formidable hurdle’” and “ ‘is usually not successful.’” Owens v. Baltimore City State's
Attorneys Office, 767 F.3d 379, 396 (4th Cir. 2014) (quoting Field Day, LLC v. Cnty. of Suffolk,
463 F.3d 167, 191–92 (2d Cir. 2006)).
Summary judgment is proper when the moving party demonstrates, through “particular
parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or
other materials,” that “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a), (c)(1)(A); see Baldwin v. City of
Greensboro, 714 F.3d 828, 833 (4th Cir. 2013).

If the party seeking summary judgment

demonstrates that there is no evidence to support the nonmoving party’s case, the burden shifts to
the nonmoving party to identify evidence that shows that a genuine dispute exists as to material
facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585–87 & n.10
(1986). The existence of only a “scintilla of evidence” is not enough to defeat a motion for
summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). Instead, the
evidentiary materials submitted must show facts from which the finder of fact reasonably could
find for the party opposing summary judgment. Id.
Although Defendants move in the alternative for summary judgment, the only evidence
they provide is a brief affidavit from Officer Ferreyra, asserting, as noted, that Special Agent
Hicks “was dressed in civilian clothes” and asleep in an unmarked vehicle that “was unwashed
and had a damaged exterior,” with “a loaded handgun lying on the passenger seat.” Ferreyra
Aff. ¶¶ 4–8. And, although Plaintiff opposes the treatment of this motion as one for summary
judgment, see Pl.’s Opp’n 26–28, he fails to provide an “affidavit or declaration that, for

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specified reasons, [he] cannot present facts essential to justify its opposition,” as Rule 56(d)
requires. See Fed. R. Civ. P. 56(d). In any event, under either standard the outcome is the same:
Defendants are not entitled to qualified immunity on either the facts alleged or the scant record
before the Court.
Discussion
Hicks asserts a Bivens claim to recover monetary damages from Defendants, who are
federal law enforcement officers, for their alleged violations of his Fourth Amendment rights.
See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389, 397
(1971); cf. 42 U.S.C. § 1983 (providing cause of action against state officers or agents for
constitutional rights violations). “But government officials performing discretionary functions
generally are granted a qualified immunity and are ‘shielded from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’” Wilson v. Layne, 526 U.S. 603, 609 (1999)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Thus, qualified immunity is available
for officers or agents who “act in objectively reasonable reliance on existing law.” Queen v.
Prince George’s Cnty., 188 F. Supp. 3d 535, 541 (D. Md. 2016) (quoting Rockwell v. Mayor &
City Council of Baltimore, No. RDB-13-3049, 2014 WL 949859, at *8 n.10 (D. Md. Mar. 11,
2014)).
Courts apply the same analysis to determine whether qualified immunity is available to a
law enforcement officer or agent under either Bivens or § 1983. See Wilson, 526 U.S. at 609.
The analysis “balances two important interests—the need to hold public officials accountable
when they exercise power irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555

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U.S. 223, 231 (2009). “In particular, . . . qualified immunity protects law officers from ‘bad
guesses in gray areas’ and it ensures that they may be held personally liable only ‘for
transgressing bright lines.’” Gomez v. Atkins, 296 F.3d 253, 261 (4th Cir. 2002) (quoting
Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992)).
Pursuant to this doctrine, police officers are not liable under Bivens or § 1983 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.” Streater v. Wilson, 565 Fed. App’x 208, 210 (4th Cir. 2014)
(quoting Brockington v. Boykins, 637 F.3d 503, 506 (4th Cir. 2011) (internal citations omitted)).
The Court may “exercise [its] sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in light of the circumstances in th[is]
particular case at hand.” Pearson, 555 U.S. at 236. The defendant carries the burden of proving
qualified immunity. McDonnell v. Hewitt–Angleberger, No. WMN-11-3284, 2013 WL 4852308,
at *3 (D. Md. Sept. 9, 2013) (quoting Meyers v. Baltimore Cnty., Md., 713 F.3d 723, 731 (4th
Cir. 2013)).
Here, the parties agree that Defendants detained Special Agent Hicks for an hour after
they initially stopped him.3

“Unquestionably, [t]he Fourth Amendment prohibits law

enforcement officers from making unreasonable seizures, and seizure of an individual effected
without probable cause is unreasonable.” McAfee v. Boczar, 738 F.3d 81, 87 (4th Cir. 2013), as
amended (Jan. 23, 2014) (quoting Miller v. Prince George’s Cnty., 475 F.3d 621, 627 (4th Cir.
2007)). Thus, the constitutional right not to be detained without probable cause is clearly

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Defendants argue for the first time in a footnote of their Reply that Special Agent Hicks was
not detained prior to the motorcade’s arrival because he was stopped by choice, waiting for the
motorcade, see Defs.’ Reply 6 n.3, but it is undisputed that they detained him when the
motorcade arrived and after it passed.
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established, see id., and the issue is whether Defendants had probable cause to continue to detain
Plaintiff. See Streater, 565 Fed. App’x at 210; Brockington, 637 F.3d at 506.
Probable cause to seize an individual “means ‘facts and circumstances within the
officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution,
in believing, in the circumstances shown, that the suspect has committed, is committing, or is
about to commit an offense.” Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir. 1992) (Michigan v.
De Fillippo, 443 U.S. 31, 37 (1979)). Defendants argue that they had probable cause to detain
Plaintiff because he was stopped along the highway in a dirty, unmarked car, in civilian clothes,
with a loaded handgun. Def.’s Mot. 9–10 & n.9. Possession of a handgun in Maryland can give
rise to probable cause, as Md. Code Ann., Crim. Law § 4-203(a)(1) provides that “a person may
not: (i) wear, carry, or transport a handgun . . . on or about the person; [or] (ii) wear, carry, or
knowingly transport a handgun . . . in a vehicle traveling on a . . . highway . . . .”
But what Plaintiff challenges is not his initial seizure but his continued detention for an
hour after Defendants received and acknowledged his Secret Service credentials. Compl. ¶¶ 6–8,
55–57; see Pl.’s Opp’n 7, 9. Certainly, Criminal Law § 4-203 does not prohibit a federal “law
enforcement official” from “wearing, carrying, or transporting . . . a handgun” if the official “is
authorized at the time and under the circumstances to wear, carry, or transport the handgun as
part of the person’s official equipment.” Crim. Law § 4-203(b)(1)(i).
But, as Defendants see it, “Plaintiff allegedly showed Ofc. Ferreyra his purported
credentials identifying him as an agent with the U.S. Secret Service,” and they “were not
required to blindly accept Plaintiff’s assertions that he was a Secret Service agent or that he was
on-duty, particularly in light of circumstances reasonably casting suspicion on these assertions,
such as Plaintiff’s wearing civilian clothing and being in an unmarked vehicle.” Def.’s Mot. 9–

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10 (emphasis added).

They insist that, unless Officer Ferreyra “omnisciently knew the

circumstances under which a Secret Service agent could lawfully possess such a firearm,” he
would have probable cause for detaining Plaintiff, even if he accepted that he was a Secret
Service agent. Id. at 10. In their view, “Plaintiff (carefully) does not allege that Ofc. Ferreyra
[or Officer Phillips] ‘confirmed and acknowledged’ that Plaintiff was ‘on duty’ at that time.”
Defs.’ Reply 4 (emphasis in Reply). Defendants also argue that Special Agent Hicks’s alleged
role in the motorcade was questionable because “the motorcade apparently did not stop or
otherwise engage Defendants (or other USPP officers on scene) to assist Plaintiff – instead it
kept traveling northbound on I-295.” Defs.’ Reply 5 (emphasis in Reply).
Not so. Federal law is clear that Secret Service agents “are authorized to . . . carry
firearms.” 18 U.S.C. § 3056(c)(1)(B). Indeed, for those without knowledge of the law or access
to the United States Code, a two minute Google search for “secret service” brings up the United
States Secret Service webpage, which states that “[u]nder Title 18, Section 3056, of the United
States Code, agents and officers of the United States Secret Service can . . . [c]arry firearms.”
See https://www.secretservice.gov/about/faqs/. This authorization is not explicitly limited to
when an agent is on duty or performing a specific service, see 18 U.S.C. § 3056(c)(1)(B), and
Defendants have not identified any law to that effect. Thus, Maryland law does not prohibit a
Secret Service agent from carrying a handgun at any time.4 See id.; Crim. Law § 4-203(b)(1)(i).
Plaintiff immediately provided Defendants with his Secret Service credentials, along with
an explanation of his assignment. Compl. ¶¶ 6–7; Pl.’s Opp’n 2. Thus, as a Secret Service
agent, Plaintiff was authorized to carry a firearm, a fact that Defendants could have readily

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If the state statute contradicted the federal statute, the federal law would preempt and invalidate
that aspect of the state law under the Supremacy Clause of the Constitution, U.S. Const. art. VI,
cl. 2. See Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 280 (1987).
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ascertained if they did not already know. And, as for their skepticism about the validity of
Special Agent Hicks’s credentials or the unkempt condition of his vehicle, or that he was
wearing civilian clothes instead of a uniform, Defendants have not offered any reason, let alone
evidence, to call Plaintiff’s credentials into question. After all, the iconic image of a Secret
Service agent is of a person in a business suit—not a uniform (and such a “notorious fact” can be
judicially noticed, Fed. R. Evid. 201(b)(1)), and it is difficult to imagine that an unwashed car
tilts the balance of facts to provide probable cause to extend the detention as long as it lasted.
Nor have they explained why they could not have spoken with one of Plaintiff’s supervisors to
verify his credentials or assignment. Therefore, on the record currently before me, Defendants
have not shown that the undisputed facts establish that they “act[ed] in objectively reasonable
reliance on existing law.” See Queen, 188 F. Supp. 3d at 541 (quoting Rockwell, 2014 WL
949859, at *8 n.10). Nor is Defendants’ probable cause to detain Special Agent Hicks evident
from the pleadings. Consequently, Defendants have not carried their burden at this stage of
showing that they are entitled to qualified immunity. See McDonnell, 2013 WL 4852308, at *3.
ORDER
Accordingly, it is, this 11th day of April, 2017, hereby ORDERED that Defendants’
Partial Motion to Dismiss or, in the Alternative, for Summary Judgment, ECF No. 37, IS
DENIED without prejudice.
/S/
Paul W. Grimm
United States District Judge
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