Boyden Gray & Associates filed an brief in opposition yesterday in the Supreme Court on behalf of Ray Lamb  in Kevin Byrd v. Ray Lamb, No. 21-184. The brief urges the Court to decline the petitioners request as there is no circuit split on what types of Fourth Amendment Bivens claims survive the Court’s decision in Zilgar v. Abbasi. The brief is available here.

The petition asks whether the court-invented damages remedy in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), is applicable where a Department of Homeland Security agent displays a firearm in a public parking lot during an alleged personal dispute.

The brief argues that there is no disagreement among the circuits on this matter. As the brief explains, circuits agree “that Bivens will not be extended to any ‘new context’ where there are ‘special factors counselling hesitation.’  Most of the cases Petitioner cites never even mention Ziglar’s test. Of the few that do, the allegations were noticeably different than those here, with no indication that those courts would have allowed a Bivens claim had they faced the facts here.”

Alternatively, the brief argues, if the Court does grant the petition, the Court should overrule Bivens altogether. The brief explains, “there is no historical support for federal courts creating direct damages actions, as it did in Bivens. Traditionally, courts heard long-existing common-law claims (usually trespass), where the constitutionality of the federal defendant’s actions sometimes arose as a defense (not as an element of the plaintiff’s cause of action).” Moreover, Bivens  violates separation of powers. “By creating an affirmative federal cause of action, Bivens usurped Congress’s legislative power under Article I’s Vesting Clause.”

Boyden Gray & Associates is a boutique litigation and public policy firm, continuing C. Boyden Gray’s decades of service as counselor to presidents, business leaders, legislators, and regulators on matters of constitutional law, regulatory policy, and international affairs.