J. L. v. Polson
MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 07/11/2017. (mpha)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
CAPTAIN JAMES LINLOR,
M E M O R A N D U M
O P I N I O N
Plaintiff pro se James Linlor alleges that Defendant
Michael Polson struck him in the groin during an airport
He contends that this constituted an
excessive use of force under the Fourth Amendment and seeks to
recover damages from Defendant pursuant to Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
The case is before the Court now on Defendant’s Motion
to Dismiss [Dkt. 25] and Motion for Leave to File DVD with Clerk
of Court [Dkt. 29].
For the reasons that follow, the Court will
deny Defendant’s Motion to Dismiss and grant Defendant’s Motion
for Leave to File DVD with Clerk of Court.
Pared of irrelevancies and invectives, the facts set
forth in Plaintiff’s Amended Complaint are straightforward.
March 10, 2016, Plaintiff travelled through Washington Dulles
See Am. Compl. [Dkt. 12] at 15.
Plaintiff encountered Defendant, a Transportation Security
Officer, while attempting to pass through airport security.
Defendant instructed Plaintiff to surrender certain
documents Plaintiff had on his person before passing through the
airport’s screening equipment.
Plaintiff refused and was
therefore required to submit to a manual pat down conducted by
Plaintiff stepped onto the rug reserved for that
purpose, placing his feet in the footprint outlines.
See id. at
Defendant then instructed Plaintiff to widen his stance
At that point, while Plaintiff was
vulnerable, Defendant “rammed his hand into the genitals of the
Plaintiff, causing the Plaintiff to bend over and step away in
Plaintiff alleges that Defendant took this action
out of anger, either intentionally or recklessly, and that
Defendant subsequently laughed and refused to apologize.
Police were summoned after Plaintiff complained of
“aggravated sexual battery,” but the police officers refused to
take any action against Defendant.
Id. at 16-17.
coworkers stone-walled Plaintiff when he attempted to gather the
names of witnesses.
Id. at 17.
Plaintiff submitted an administrative claim to the TSA
contesting his treatment, but did so using a pseudonym.
Because Plaintiff did not provide his true name, the TSA
refused to process his claim.
Plaintiff subsequently filed
suit in this Court, again employing a pseudonym.
however, found that pseudonymous litigation was not warranted by
the facts of the case.
Accordingly, the Court ordered Plaintiff
to file an amended complaint including his true name, and
On May 10, 2015, Defendant filed the instant Motion to
Dismiss for Failure to State a Claim [Dkt. 25].
submitted a DVD containing security camera footage of the
incident giving rise to this lawsuit along with a Motion for
Leave to File DVD with Clerk of Court [Dkt. 29].
II. Legal Standard
In order to survive a motion to dismiss brought under
Federal Rule of Civil Procedure 12(b)(6), a complaint must set
forth “a claim to relief that is plausible on its face.”
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
A claim is
facially plausible “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. 662, 678 (2009) (citing Twombly, 550 U.S. at
When reviewing a motion brought under Rule 12(b)(6), the
Court “must accept as true all of the factual allegations
contained in the complaint,” drawing “all reasonable inferences”
in the plaintiff’s favor.
E.I. du Pont de Nemours & Co., 637
F.3d at 440 (citations omitted).
“[T]he court ‘need not accept
the [plaintiff’s] legal conclusions drawn from the facts,’ nor
need it ‘accept as true unwarranted inferences, unreasonable
conclusions, or arguments.’”
Wahi v. Charleston Area Med. Ctr.,
Inc., 562 F.3d 599, 616 n.26 (4th Cir. 2009) (quoting Kloth v.
Microsoft Corp., 444 F.3d 312, 319 (4th Cir.2006)) (alterations
Generally, courts may not look beyond the four
corners of the complaint in evaluating a Rule 12(b)(6) motion.
See Goldfarb v. Mayor & City Council of Baltimore, 791 F.3d 500,
508 (4th Cir. 2015).
In evaluating Defendant’s Motion, the Court is mindful
that Plaintiff is proceeding in this matter pro se.
filed pro se is ‘to be liberally construed,’ and ‘a pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.’”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).
Defendant argues that Plaintiff’s Amended Complaint
must be dismissed because (1) there is no Bivens remedy
available in this context and (2) Defendant is entitled to
The Court addresses these arguments in
A. The Availability of a Bivens Remedy
By itself, “[t]he Constitution does not ordinarily
provide a private right of action for constitutional violations
by federal officials.”
Big Cats of Serenity Springs, Inc. v.
Rhodes, 843 F.3d 853, 859 (10th Cir. 2016).
The Supreme Court,
however, held in Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388, 389 (1971), that “violation
of [the Fourth Amendment] by a federal agent . . . gives rise to
a cause of action for damages” directly under the Constitution,
without the need for a congressionally created remedy.
Since then, Bivens has been applied sparingly, as the
Supreme Court has “responded cautiously to suggestions that
Bivens remedies be extended into new contexts.”
Chilicky, 487 U.S. 412, 421 (1988).
The Court has made clear
that no Bivens remedy should be implied where “any alternative,
existing process for protecting the interest [at issue] amounts
to a convincing reason for the Judicial Branch to refrain from
providing a new and freestanding remedy in damages.”
Robbins, 551 U.S. 537, 550 (2007).
Bivens relief is further
limited to situations in which “no special factors counsel[ ]
Bivens, 403 U.S. at 396.
Against this backdrop, “[i]t is clear that expansion
of a Bivens-based cause of action . . . is the exception, not
Cioca v. Rumsfeld, 720 F.3d 505, 510 (4th Cir.
Indeed, as is often observed, since Bivens the Supreme
Court has only twice implied similar remedies in new contexts.
See Davis v. Passman, 442 U.S. 228 (1979) (finding a Bivens
remedy for violation of the Due Process Clause of the Fifth
Amendment); Carlson v. Green, 446 U.S. 14 (1980) (finding a
Bivens remedy for violation of the Cruel and Unusual Punishment
Clause of the Eighth Amendment).
Moreover, “Bivens actions are not recognized Amendment
by Amendment in a wholesale fashion” but “are context-specific.”
Wilson v. Libby, 498 F. Supp. 2d 74, 86 (D.D.C. 2007), aff’d,
535 F.3d 697 (D.C. Cir. 2008).
“For example, a Bivens action
alleging a violation of the Due Process Clause of the Fifth
Amendment may be appropriate in some contexts, but not in
F.D.I.C. v. Meyer, 510 U.S. 471, 484 n.9 (1994).
Accordingly, the fact that Plaintiff invokes the Fourth
Amendment – the subject of Bivens itself – does not end the
Court’s inquiry as to whether a Bivens remedy is appropriate
Cf. De La Paz v. Coy, 786 F.3d 367, 380 (5th Cir. 2015)
(declining to imply a Bivens remedy for alleged Fourth Amendment
violations by Customs and Border Patrol agents in the course of
civil immigration removal proceedings).
1. Whether This Case Presents a New Context
The Court must first determine whether the case at bar
presents a novel context requiring an extension of Bivens, or if
it instead falls within the ambit of the remedy as it is already
The Court notes first that Bivens has long been
understood to provide a remedy for excessive force claims under
the Fourth Amendment.
See, e.g., Schultz v. Braga, 455 F.3d
470, 479–80 (4th Cir. 2006).
Moreover, other courts have
applied Bivens to airport security screenings by TSA officials
without suggesting that this presents a novel context.
e.g., George v. Rehiel, 738 F.3d 562, 568–69 (3d Cir. 2013)
(assuming that a Bivens remedy is available where a TSA officer
violates the Fourth Amendment in connection with an airport
security screening); Corbett v. Transportation Sec. Admin., 568
F. App’x 690, 697–98 (11th Cir. 2014) (same); Hernandez v.
United States, 34 F. Supp. 3d 1168, 1184 (D. Colo. 2014) (same);
Mocek v. City of Albuquerque, No. CIV 11-1009 JB/KBM, 2013 WL
312881, at *58–63 (D.N.M. Jan. 14, 2013) (same).
saliently, in Tobey v. Jones, 706 F.3d 379 (4th Cir. 2013), the
Fourth Circuit held that an individual had plausibly alleged a
First Amendment Bivens claim against TSA officers in connection
with an airport security screening.
In so holding, the Court
suggested that the airport setting does not, in and of itself,
insulate federal officers from constitutional claims.
at 393 (“We . . . are therefore unwilling to relinquish our
First Amendment protections — even in an airport.”).
As the dissent in Tobey pointed out, however, the
Fourth Circuit only assumed, but did not decide, that a Bivens
remedy would lie in connection with an airport security
screening. See 706 F.3d at 405 n.* (Wilkinson, J., dissenting).
Accordingly, Tobey does not resolve the issue now before the
See De La Paz, 786 F.3d at 373-80 (finding no Bivens
remedy in a context where the Court had previously assumed one
Moreover, the Supreme Court has recently clarified
that “the new-context inquiry is easily satisfied.”
Abbasi, No. 15-1358, __ S. Ct. __, 2017 WL 2621317, at *22 (U.S.
June 19, 2017).
It is met wherever a “case is different in a
meaningful way from previous Bivens cases[.]”
Id. at *15.
new context may be presented even where the difference between
the past and present case is “small . . . in practical terms.”
Id. at *22.
As Defendant points out, this case does not concern
the type of law enforcement activity at issue in a typical
Fourth Amendment Bivens suit, but rather an airport screening by
a Transportation Security Officer.
Under the test outlined in
Abbasi, this difference in setting and class of Defendant is
sufficient to create a new “context” for purposes of the Bivens
The Court therefore addresses the propriety of an
extension of the Bivens remedy here.
2. Alternative, Existing Processes
A Bivens claim will not lie where “any alternative,
existing process for protecting the interest amounts to a
convincing reason for the Judicial Branch to refrain from
providing a new and freestanding remedy in damages.”
551 U.S. at 550.
Defendant points to three alternative remedial
processes, arguing that they foreclose a Bivens remedy here.
The Court disagrees.
Indeed, the Court has little difficulty
concluding that the alternatives suggested by Defendant are no
alternatives at all.
Defendant first argues that the availability of claim
under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b),
2401, 2671–2680, counsels against implying a Bivens remedy here.
But as Defendant acknowledges, the Supreme Court has squarely
held that the FTCA does not provide an alternative remedial
process bearing on the availability of a Bivens remedy.
Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001) (noting
that it is “‘crystal clear’ that Congress intended the FTCA and
Bivens to serve as ‘parallel’ and ‘complementary’ sources of
liability”) (quoting Carlson v. Green, 446 U.S. 14, 20 (1980)).
While Defendant contends that the availability of an FTCA claim
is “one factor” the Court may consider in deciding whether to
imply a Bivens remedy, the law is unambiguous that this “factor”
is entitled to little, if any, weight.
An FTCA claim
is simply not “a substitute for a Bivens action.”
Lucas, 462 U.S. 367, 378 (1983).
Moreover, it is not entirely clear that an FTCA action
is available to Plaintiff.
The FTCA exempts from its limited
waiver of sovereign immunity “[a]ny claim arising out of assault
28 U.S.C. § 2680(h).
While that exemption
does not extend to “law enforcement officers of the United
States Government,” some Courts have interpreted the term “law
enforcement officers” to exclude TSA officials like Defendant.
See Pellegrino v. U.S. Transp. Sec. Admin., No. CIV.A. 09-5505,
2014 WL 1489939, at *6-7 (E.D. Pa. Apr. 16, 2014), amended on
reconsideration, No. CIV.A. 09-5505, 2014 WL 3952936 (E.D. Pa.
Aug. 12, 2014) (listing cases).
The Court, however, need not
reach the question in light of the Supreme Court’s clear
instruction that the FTCA is largely irrelevant to the issue now
before the Court.
Defendant next argues that “if Plaintiff wished to
challenge TSA’s pat-down screening procedures as applied to him
by Officer Polson as a violation of the Fourth Amendment, he
could have filed a petition for review of those procedures in an
appropriate court of appeals pursuant to 49 U.S.C. § 46110.”
Mem. in Supp. of Mot. [Dkt. 27] at 11.
Plaintiff does not,
however, seek “review” of TSA procedures or any “order issued
by” an aviation authority.
49 U.S.C. § 46110(a).
afford Plaintiff no relief for the Court to “affirm, amend,
modify, or set aside” any such order.
Id. § 46110(c).
Plaintiff challenges a discrete instance of abuse not authorized
by the TSA – to wit, Defendant’s alleged use of excessive force
in intentionally and gratuitously striking Plaintiff’s groin.
Plaintiff seeks compensation for a past wrong, not prospective
relief from considered agency action.
The statute Defendant
cites is simply inapplicable to the case at bar.
Finally, Defendant argues that Plaintiff may seek
redress through the TSA’s “Contact Center,” which “passengers
and others may use in order to register their complaints and
concerns via phone, email, or internet submission form.”
in Supp. of Mot. [Dkt. 27] at 11.
Judging by Defendant’s
description, this is, essentially, a consumer complaint hotline.
It is not clear what, if any, relief a complainant may receive.
It appears that the “Contact Center” affords individuals only
the bare opportunity to make the TSA aware of a complaint.
At that point, the TSA will unilaterally direct the
complaint to the “correct TSA recipient . . . for additional
consideration and, if deemed necessary, action.”
This meager opportunity is not the sort of alternative
process that provides a “convincing reason for the Judicial
Branch to refrain from providing a new and freestanding remedy
Wilkie, 551 U.S. at 550; see also Pellegrino, 2014
WL 1489939, at *11 (rejecting the TSA’s Contact Center as a
sufficient alternative to a Bivens remedy); cf. Wilkie, 551 U.S.
at 554 (finding “a[ ] [patchwork] assemblage of state and
federal, administrative and judicial benches applying
regulations, statutes, and common law rules” insufficient to
preclude a Bivens remedy).
And while Defendant cites Swyers v.
United States Patent & Trademark Office, No. 1:16-CV-15, 2016 WL
7042943 (E.D. Va. May 27, 2016), for the proposition that agency
procedures may provide an adequate alternative to a Bivens
remedy, the procedures at issue in that case were self-evidently
more fulsome than those afforded by the TSA’s “Contact Center,”
and in fact involved court review.
See id. at *11 (discussing
procedures that permitted an aggrieved party to “petition the
OED Director, followed by the PTO Director, and after a final
decision is reached, a federal court”).
In short, Defendant has not identified any meaningful
alternative to a Bivens remedy available to Plaintiff.
being so, this is “a case like Bivens or Davis in which ‘it is
damages or nothing.’”
Abbasi, 2017 WL 2621317, at *19 (quoting
Bivens, 403 U.S. at 410 (Harlan, J., concurring in judgment)).
Moreover, Defendant points to no compelling evidence “that
congressional silence [here] might be more than ‘inadvertent.’”
Id. at *18 (quoting Schweiker v. Chilicky, 487 U.S. 412, 423
The Court therefore proceeds to the second step of the
3. Factors Counselling Hesitation
A Bivens action will not lie where “special factors”
suggest that the Court should hesitate to imply a Bivens remedy.
See Wilkie, 551 U.S. at 550.
The “special factors” inquiry does
not necessarily focus on whether a Bivens action is desirable in
a given context.
Rather, the issue is one of institutional
competence: “‘who should decide’ whether to provide for a
damages remedy, Congress or the courts?”
Abbasi, 2017 WL
2621317, at *12 (quoting Bush, 462 U.S. at 380).
Court has made clear that “[t]he answer most often will be
While Defendant notes that Congress has legislated on
the subject of redress for travelers wrongly prevented from
boarding aircraft, see Mem. in Supp. of Mot. [Dkt. 27] at 17,
the Court is unconvinced that this legislation has any bearing
on the present situation. The process Defendant describes is a
means of appealing a federal agency’s considered decision – a
topic having little to do with redress for an individual TSA
officer’s unauthorized use of excessive force. The Court will
not presume that Congress has been conspicuously silent on the
topic under consideration due to unrelated legislation.
Defendant argues that special factors are presented
here because this case implicates national security.
Court agrees that appreciable national security concerns would,
if raised, preclude a Bivens remedy here, Defendant does not
adequately explain how this case presents such concerns.
As an initial matter, the Court notes that Defendant
consistently and erroneously refers to this case as arising in
the “national security context.”
This conflates two distinct
aspects of the Bivens analysis.
A “context,” for purposes of
implying a Bivens remedy, is a relatively narrow set of
circumstances and legal issues.
See Abbasi, 2017 WL 2621317, at
The relevant context here is a TSA officer’s alleged use
of excessive force during an airport security screening.
“National security” is a high-level description of a special
factor that might arise and counsel hesitation in this context,
not a context unto itself.
Defendant’s Motion does little to tie specific
national security concerns to the context under consideration.
Rather, it rests primarily upon generalizations about the sui
generis nature of the airport setting.
Defendant is correct
that Courts have consistently recognized airports as loci of
special security concerns.
See, e.g., City of Indianapolis v.
Edmond, 531 U.S. 32, 47-48 (2000) (noting that “at places like
airports . . . the need for . . . measures to ensure public
safety can be particularly acute); United States v. Herzbrun,
723 F.2d 773, 775 (11th Cir. 1984) (“[W]e have long held that
[airport security checkpoints], like international borders, are
‘critical zones’ in which special [F]ourth [A]mendment
But that does not mean generic
national security concerns bar any constitutional claim arising
at an airport.
See, e.g., Tobey, 706 F.3d at 393 (“We . . . are
therefore unwilling to relinquish our First Amendment
protections — even in an airport.”).
concerns must not become a talisman used to ward off
Abbasi, 2017 WL 2621317, at *18.
question is not whether airports present special security
concerns – they do – but whether those concerns have any
particular bearing on the context at issue in this case.2
The only specific concern Defendant identifies is the
risk that implying a Bivens remedy here might chill legitimate
Similarly, Defendant makes much of the TSA’s status as
an integral part of the United States’ “national security
apparatus.” Many – perhaps most – federal law enforcement
bodies have some claim to that status. The Federal Bureau of
Investigation, for example, is no less a vital part of the
“national security apparatus” than the TSA. See Abbasi, 2017 WL
2621317, at *7. But that does not insulate FBI agents from
valid Bivens claims generally. See, e.g., Trulock v. Freeh, 275
F.3d 391, 399 (4th Cir. 2001). To hold that a federal agency’s
status as a component of the “national security apparatus”
precludes a Bivens action against its agents would eviscerate
the Bivens remedy “in the search-and-seizure context,” where its
“continued force, or even . . . necessity” remains unquestioned.
Abbasi, 2017 WL 2621317, *11.
TSA activity and discourage TSA officers from performing
appropriately thorough security screenings.
The risk of
deterring legitimate law enforcement activity through personal
liability, however, is not unique to this context.
is a risk that inheres whenever courts imply a Bivens remedy.
Federal officers have, for nearly fifty years, navigated such
concerns while performing Fourth Amendment searches.
Defendant’s observations about the nature of the TSA’s work –
for example, that TSA officers must make split second decisions
in a fast moving environment to protect public safety – are no
less applicable to the work of other federal agents who have
successfully contended with Bivens liability.
Cf. Graham v.
Connor, 490 U.S. 386, 397 (U.S. 1989) (“[P]olice officers are
often forced to make split-second judgments – in circumstances
that are tense, uncertain, and rapidly evolving – about the
amount of force that is necessary in a particular situation”).
Other of Defendant’s observations seem unrelated to the issue of
whether a Bivens remedy in this specific context would unduly
chill TSA activity.
It is not clear, for example, why it should
matter here that “TSA screening officers may . . . require
assistance from law enforcement officers in circumstances where
a passenger is behaving in an intentionally disruptive manner.”
Mem. in Supp. of Mot. to Dismiss [Dkt. 27] at 16.3
Moreover, while Defendant notes that TSA officers
Defendant provides no reason to believe that TSA
officers will be uniquely deterred from the adequate performance
of their duties if faced with Bivens liability.
To the extent
there are close cases, it is the purpose of qualified immunity
to provide TSA officers with the breathing room they require to
See Pellegrino, 2014 WL 1489939, at *13.
The Court, however, declines to simply assume that TSA officers
would be too timid to perform adequate security screenings if
subject to suit on the same basis as other federal officers.
hold otherwise would essentially overrule Bivens completely
given that, as noted above, the risk of chilling law enforcement
arises whenever Bivens is invoked.
This concern seems particularly unwarranted given that
– as also discussed above – many courts have hitherto presumed
the availability of a Bivens remedy against TSA officers in
connection with airport security screenings.
When other courts
have expressly addressed the propriety of Bivens actions against
TSA officers, they have permitted the action to proceed.
Vanderklok v. United States, No. CV 15-00370, 2016 WL 4366976,
at *7 (E.D. Pa. Aug. 16, 2016), appeal docketed, No. 16-3422
process a high volume of passengers and luggage every day, see
Mem. in Supp. of Mot. to Dismiss [Dkt. 27] at 15, Defendant does
not state how many enhanced pat-down screenings, such as the one
at issue here, are performed daily. Accordingly, while the
number of such searches might have factored into the Court’s
decision, that number is not now before the Court.
(3rd Cir. Aug. 22, 2016); Pellegrino, 2014 WL 1489939, at *13.
Indeed, to the Court’s knowledge, this would be the first court
to hold that a Bivens remedy is not available when a TSA officer
violates the Fourth Amendment during an airport security
For all that courts have allowed Bivens remedies
under similar circumstances, the catastrophic chilling effect
Defendant fears has yet to materialize.
Defendant does not cite, and the Court cannot see, any
other reason why national security concerns would counsel
hesitation to imply a Bivens remedy here.
that Defendant employed excessive force during a security
screening, deliberately and gratuitously striking Plaintiff in
This is not conduct that the TSA has deemed
necessary, or even desirable, to protect national security.
Indeed, the TSA expressly forbids its officers to engage in such
See 81 Fed. Reg. 11,364, 11,374 (Mar. 3, 2016)
(“inappropriate touching of a passenger by an employee is
This matter therefore little resembles other cases in
which courts have declined to imply a Bivens remedy due to
national security concerns.
Generally, those cases have
involved lawsuits against officials alleged to have acted in
accordance with national security policy.
Thus, for example, in
Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir. 2012), the Fourth
Circuit declined to imply a Bivens remedy where it would have
invaded the executive sphere, requiring that the “judiciary
review and disapprove sensitive military decisions made after
extensive deliberations within the executive branch as to what
the law permitted, what national security required, and how best
to reconcile competing values[.]”
Id. at 551.
Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009), the Second
Circuit declined to imply “a damages remedy against senior
officials who implement an extraordinary rendition policy”
because doing so “would enmesh the courts ineluctably in an
assessment of the validity and rationale of that policy and its
implementation in [a] particular case.”
Id. at 575.
And in Doe
v. Rumsfeld, 683 F.3d 390 (D.C. Cir. 2012), the D.C. Circuit
declined to imply a Bivens remedy in a context that “would
require a court to delve into the military’s policies regarding
the designation of detainees as ‘security internees’ or ‘enemy
combatants,’ as well as policies governing interrogation
Id. at 396.
This case is self-evidently more straightforward.
There is no comparable risk of entangling the judiciary in
sensitive matters of national security through second-guessing
Indeed, if anything, this action harmonizes
with the TSA’s avowed policy.
Moreover, while this case arises in a new context – an
airport security screening conducted by a Transportation
Security Officer – the Fourth Amendment claim at issue falls
squarely within the heartland of Bivens.
It presents a
relatively simple, discrete question of whether a federal
officer applied excessive force during a Fourth Amendment
See Pellegrino, 2014 WL 1489939, at *13 (rejecting the
argument that the Court should decline to imply a Bivens remedy
against TSA officers in part because “the present circumstances
encompass exactly the type of facts and issues [that fit]
comfortably within the judiciary’s purview”).
instances of . . . law enforcement overreach . . . due to their
very nature are difficult to address except by way of [Bivens]
damages actions after the fact.”
Abbasi, 2017 WL 2621317, at
And while the Supreme Court has recently reaffirmed that
the standard for implying a Bivens remedy is quite stringent,
the Court simultaneously emphasized the “continued force, or
even the necessity” of “Bivens in the search-and-seizure context
in which it arose.”
Id. at *11.
This is, in all relevant respects, precisely the kind
of Fourth Amendment search-and-seizure case Courts have long
adjudicated through Bivens actions.
Defendant has identified no
meaningful difference, no reason for the Court to doubt its
competence to carry the venerable Fourth Amendment Bivens remedy
into this context, and no reason to believe that Congress would
disapprove of the Court’s decision to do so.
Courts must approach novel Bivens claims with
That does not mean, however, that vague
generalizations about the importance of national security are
sufficient to defeat Bivens liability.
To hold otherwise here
would be to disregard the Supreme Court’s injunction that
“national-security concerns must not become a talisman used to
ward off inconvenient claims[.]”
Abbasi, 2017 WL 2621317, at
It would likewise run contrary to the Fourth Circuit’s
admonition that the airport setting is not, in and of itself,
sufficient to defeat a constitutional claim.
F.3d at 393.
See Tobey, 706
As Plaintiff would otherwise be without recourse,
and Defendant has not identified any specific special factor
that gives the Court pause, the Court will permit Plaintiff’s
Bivens claim to proceed.
B. Qualified Immunity
Defendant next contends that he is entitled to
In evaluating whether Defendant is entitled
to qualified immunity, the Court must determine “(1) whether the
plaintiff has established the violation of a constitutional
right, and (2) whether that right was clearly established at the
time of the alleged violation.”
Raub v. Campbell, 785 F.3d 876,
881 (4th Cir. 2015).
In making this determination on a motion to dismiss
brought under Federal Rule of Civil Procedure 12(b)(6), the
Court generally confines its analysis to the allegations of fact
set forth in the plaintiff’s complaint.
Defendant claims that the Court can consider an additional piece
of extrinsic evidence: a video taken by a security camera of the
events giving rise to this suit.
The video, to put it mildly,
depicts an incident substantially less dramatic than Plaintiff’s
Amended Complaint would suggest.
As the Court finds that Plaintiff interposes no valid
objection, the Court will grant Defendant’s Motion for Leave to
File the DVD containing the video with the Clerk of the Court.
Nonetheless, the Court finds that it may not properly consider
the footage submitted by Defendant in deciding the instant
There exist a few limited exceptions to the general
rule that a court may consider only the allegations of a
plaintiff’s complaint in evaluating a motion brought under
Federal Rule of Civil Procedure 12(b)(6).
The Court may, for
example, consider exhibits attached to the Complaint and other
documents expressly incorporated by reference.
Goldfarb, 791 F.3d at 508.
But while Plaintiff’s Amended
Complaint repeatedly refers to security footage and includes two
still images that appear to have been taken from the video in
question, Plaintiff’s Amended Complaint neither attaches nor
explicitly incorporates the video submitted by Defendant.
Defendant contends that the Court may nonetheless
consider the footage because it is integral to Plaintiff’s
There are, however, three problems with this
First, it is not clear that the footage in question
is integral to Plaintiff’s Amended Complaint in any relevant
A document is “integral” to a complaint, and therefore
fair game on a Rule 12(b)(6) motion, when the plaintiff’s claims
“turn on, [ ]or are . . . otherwise based on” the document in
Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166
(4th Cir. 2016).
Plaintiff’s claims here in no way depend upon
the footage Defendant has submitted.
And while Plaintiff’s
Amended Complaint makes clear that he intends to submit security
footage for evidentiary support, “[l]imited quotation from or
reference to documents that may constitute relevant evidence in
a case is not enough to incorporate those documents, wholesale,
into the complaint.”
Sira v. Morton, 380 F.3d 57, 67 (2d Cir.
Second, Plaintiff has suggested that he disputes the
provenance of the security footage in question.
While the Court
finds itself skeptical of Plaintiff’s claims, generally it is
only appropriate to consider documents extrinsic to a complaint
on a 12(b)(6) motion where there is “no dispute about the
Goines, 822 F.3d at 166.
is unable to resolve this sort of evidentiary issue on the
Third, Plaintiff contends that additional footage will
be produced in discovery that will vindicate his account of
See Opp. [Dkt. 33] at 3.
It is therefore not clear
that Plaintiff’s various references to security footage in his
Amended Complaint refer specifically to the video submitted by
Defendant, as opposed to security footage generally.
circumstances, it is not entirely clear that the specific
document Defendant has submitted is cited in, much less integral
to, Plaintiff’s Amended Complaint.
Turning to the question of whether Defendant is
entitled to qualified immunity based solely on the allegations
of Plaintiff’s Amended Complaint, the Court finds that he is
As discussed above, the allegations of Plaintiff’s Amended
Complaint are simple.
Plaintiff claims that Defendant required
him to submit to a pat-down search while passing through airport
Defendant then asked Plaintiff to spread his legs.
The Court notes that while Defendant has submitted
affidavits attesting to the video’s authenticity, the Court is
not able consider these extrinsic documents in deciding the
present motion. See, e.g., Davison v. Loudoun Cty. Bd. of
Supervisors, No. 1:16CV932 (JCC/IDD), 2016 WL 4801617, at *3-4
(E.D. Va. Sept. 14, 2016).
After Plaintiff had done so, Defendant gratuitously and
intentionally struck Plaintiff in the groin.
At no point does Defendant address these relatively
Defendant first argues that the
TSA’s pat-down search procedures are constitutional.
in Supp. of Mot. [Dkt. 27] at 21-23.
But as discussed above,
Plaintiff does not challenge the constitutionality of the TSA’s
pat-down search procedures.
Defendant next argues that
Plaintiff has failed to state a claim in light of the video
footage submitted by Defendant.
See id. at 23-26.
discussed above, however, the Court finds that it cannot
properly consider this footage in evaluating Defendant’s Motion.
Defendant argues further that Plaintiff fails to set
forth any well-pled allegations of fact demonstrating that
Defendant violated the Fourth Amendment.
See id. at 26-27.
here again, Defendant does not address the clear narrative
included in Plaintiff’s Amended Complaint.
primarily takes issue with the 14-page preamble to that
narrative – which, the Court agrees, consists largely of
Finally, Defendant argues that “even if
this Court could construe Plaintiff’s allegations to include a
claim that Officer Polson utilized excessive force (outside of
the alleged hand ‘ramming’) during the patdown, the
intrusiveness during the standard pat-down screening procedure
was minimal, and the manner was routine.”
Id. at 27.
It is not
clear, however, why the Court would look beyond the “hand
‘ramming’” to find a Fourth Amendment violation, as that is
clearly the basis of Plaintiff’s Fourth Amendment claim.
Defendant’s Reply Brief is little better.
Defendant appears to ask the Court to disregard the allegations
of Plaintiff’s Amended Complaint and find “that contact with
Plaintiff’s genitals, if any at all, was incidental and occurred
through the course of a typical security pat-down.”
42] at 8.
The Court, however, is not free to simply disbelieve
the clear factual allegations of Plaintiff’s Amended Complaint
on a 12(b)(6) Motion.
Plaintiff claims that Defendant
intentionally, gratuitously struck him in the groin on a
specific date in a specific location.
Whether or not that is so
can be resolved only on summary judgment or at trial.
Defendant’s oratorical calisthenics appear calculated
to avoid simple questions with obvious answers: First, does the
Fourth Amendment permit a federal officer to gratuitously strike
an individual during a search?
established in the law at the time?
Second, was that clearly
When evaluating an excessive force claim, Courts
engage in “‘a careful balancing of the nature and quality of the
intrusion on the individual’s Fourth Amendment interests against
the countervailing governmental interests at stake.’”
Ray, 781 F.3d 95, 101 (4th Cir. 2015) (quoting Graham v. Connor,
490 U.S. 386, 396 (U.S. 1989)).
In conducting this analysis,
three considerations are particularly salient: the severity of
the crime allegedly committed, the threat posed to the officer
and others, and any resistance offered.
Armstrong, 810 F.3d at
Courts have found that an airport security screening
search like the one at issue in this case is “constitutionally
reasonable provided that it ‘is no more extensive nor intensive
than necessary, in the light of current technology, to detect
the presence of weapons or explosives [ ][and] that it is
confined in good faith to that purpose.’” United States v.
Aukai, 497 F.3d 955, 962 (9th Cir. 2007) (quoting United States
v. Davis, 482 F.2d 893, 913 (9th Cir. 1973) (alterations in
Taking the allegations of Plaintiff’s Complaint as
true, Plaintiff was not suspected of committing any crime, posed
no threat to Defendant or others, and fully complied with
Defendant’s instructions during the pat-down search.
in question went well beyond what was necessary to detect
contraband, and was not confined to that purpose.
There was, in
short, no legitimate government interest served by Defendant’s
alleged use of force to be weighed against Plaintiff’s
substantial interest in being free from an unreasonable seizure.
Such an action is “objectively unreasonable,” Graham, 490 U.S.
at 397, by any measure, and violates the Fourth Amendment.
Defendant nonetheless argues that “[e]ven if the Court
were to conclude that Plaintiff had sufficiently alleged a
violation of the Fourth Amendment, [Defendant] would still be
entitled to qualified immunity because there was no law clearly
establishing the specific degree of permissible intrusiveness of
a security screening pat-down[.]”
Rep. [Dkt. 42] at 11.
Fourth Circuit, however, “repeatedly ha[s] held that it is not
required that a right violated already have been recognized by a
court in a specific context before such right may be held
‘clearly established’ for purposes of qualified immunity.”
Meyers v. Baltimore Cty., Md., 713 F.3d 723, 734 (4th Cir.
“[O]fficials can still be on notice that their conduct
violates established law even in novel factual circumstances.”
Hope v. Pelzer, 536 U.S. 730, 741 (2002).
Whether or not the
law has established “the specific degree of permissible
intrusiveness of a security screening pat-down,” it has clearly
established the limits of force that may be used during a Fourth
It is, and has long been, crystal clear that
“officers using unnecessary, gratuitous, and disproportionate
force to seize a secured, unarmed citizen, do not act in an
objectively reasonable manner and, thus, are not entitled to
Bailey v. Kennedy, 349 F.3d 731, 744–45
(4th Cir. 2003) (quoting Jones v. Buchanan, 325 F.3d 520, 531–32
That is precisely what is alleged to have
occurred here, and it makes little difference that it occurred
in the course of an airport security screening.
strains credulity for Defendant to claim that a reasonable
federal officer would be surprised to learn that gratuitously
striking an individual in the groin while searching them
violates the Fourth Amendment.
In sum, Defendant is not entitled to qualified
immunity based on the allegations of Plaintiff’s Amended
The issue, of course, may – and perhaps should – be
raised again on a motion for summary judgment, at which point
the Court will be able to take into account a wider range of
For the foregoing reasons, the Court will deny
Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint.
Additionally, the Court will grant Defendants’ Motion for Leave
to File DVD with Clerk of Court.
An appropriate Order will issue.
July 11, 2017
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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