ROBERT J. SHELBY, District Judge.
This case arises following the tragic suicide of Dr. James D. Redd after his arrest for trafficking in stolen Native American artifacts, theft of government property, and theft of tribal property. The Estate of Dr. Redd brings this Bivens action against Bureau of Land Management (BLM) Agents Daniel Love and Dan Barnes. The Estate of Dr. Redd asserts that Agent Love and Agent Barnes violated Dr. Redd's constitutional rights by: (1) providing false information to obtain a warrant for Dr. Redd's arrest and authorizing a search of his home; (2) using the illegally obtained search warrant to search Dr. Redd's home; (3) using excessive force against Dr. Redd primarily by sending approximately 140 agents, many of whom were heavily armed and clothed in flak jackets, to raid and search Dr. Redd's home; (4) violating Dr. Redd's equal protection rights; and (5) violating Dr. Redd's right to due process.
Defendants move to dismiss, arguing qualified immunity shields them from Dr. Redd's claims. After careful consideration and for the reasons stated below, the court finds that Agent Love and Agent Barnes
Accordingly, the court GRANTS IN PART and DENIES IN PART Defendants' motion to dismiss, and DISMISSES Plaintiffs' first, second, fourth, and fifth causes of action.
In January 1996, the Redds visited and collected Native American artifacts from an area they believed to be privately owned. Unbeknownst to the Redds, the BLM map they relied on was inaccurately drawn. The Redds were, in fact, collecting Native American artifacts from Cottonwood Wash, a Hopi ancestral burial ground. The Redds were arrested and charged with desecration of a human body. The arrest ultimately resulted in Mrs. Redd entering an Alford Plea in which she admitted no criminal conduct, and agreed to pay $10,000 to settle a civil suit related to the act. The state dropped all charges against Dr. Redd.
In October 2006, the FBI and BLM began a joint investigation into the looting of Native American artifacts on public lands dubbed Operation Cerberus. Agent Love was one of the operation's principle architects. As part of Operation Cerberus, FBI and BLM agents enlisted as a confidential informant Ted Gardiner, a Native American artifacts collector and dealer. The Redds allege that Agent Love used Mr. Gardiner to target the Redds because Agent Love felt the Redds had not been punished for the January 1996 Cottonwood Wash incident. Mr. Gardiner met with Mrs. Jeanne Redd, Dr. Redd's wife, on several occasions to trade artifacts. Dr. Redd was also present for some of the meetings. During those trades, Mr. Gardiner would ask Mrs. Redd to identify where she found her artifacts by pointing out the areas on a map. The government used hidden cameras and recorders to obtain footage and audio of the meetings.
Relying on these statements from Mrs. Redd, which confirmed that she and her husband removed various artifacts from public or Native American lands, federal agents sought a warrant to arrest the Redds and search their property. Dr. Redd alleges that Agent Love's valuation of the artifacts obtained from the Redds played an integral part in the warrant application, and contributed to the severity of the criminal charges filed against the Redds. For example, one artifact obtained from Dr. Redd was a bird pendant shell that Dr. Redd found in Arizona. Dr. Redd contends that Mr. Gardiner and Agent Love willfully inflated the shell's purchase price from between $75 and $100 to $1,000 in order to enhance the charges that could be filed against the Redds.
Agents arrived at Dr. Redd's home in Blanding, Utah around 6:40 a.m. on June 10, 2009. Though the exact number of agents present at Dr. Redd's home is not specified, approximately 80 agents raided targets in Blanding, including Dr. Redd's home. The agents at Dr. Redd's home were armed with assault rifles and clothed in flak jackets.
Dr. Redd returned home from an early morning visit to his clinic soon after the agents arrived. As Dr. Redd exited his car, he was restrained, manhandled, and handcuffed. Agent Barnes then sequestered Dr. Redd in Dr. Redd's garage and interrogated him over the course of four hours. Agent Barnes accused Dr. Redd of unlawful activity, called him a liar, taunted him with revocation of his medical license for felony convictions, and told him that he would never practice medicine again. Also, in an apparent reference to the previous state charges, Agent Barnes pointed to a set of gardening tools and asked Dr. Redd with which shovel he liked to dig up bodies.
At some point during the interrogation, Dr. Redd needed to use the restroom. Agent Barnes ordered two unidentified agents to escort Dr. Redd to the restroom. Although the restroom was spacious, the two agents stood six inches from Dr. Redd's knees while he defecated. After Dr. Redd finished, the agents refused to remove his handcuffs so he could properly clean himself.
Meanwhile, the 80 or more agents sequestered the remaining members of the Redd family in separate corners of their home. These agents then combed through Dr. Redd's home looking for and cataloguing artifacts and evidence. In the end, the agents collected 112 boxes of materials. During the raid, Agent Love spoke to other agents on his cell phone and urged them to come to Dr. Redd's home. Dr. Redd alleges that approximately 140 agents came through the home during the raid on June 10, 2009.
Dr. Redd tragically committed suicide the day after he was arrested. His estate and his heirs brought this Bivens action against the federal agents involved in Operation Cerberus, alleging that the agents violated Dr. Redd's constitutional rights.
Dr. Redd asserts five causes of action against Defendants Agent Love and Agent Barnes:
Defendants argue that they are entitled to qualified immunity and move the court to dismiss all five causes of action. The court discusses the legal standards relevant
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court may dismiss a plaintiff's complaint for "failure to state a claim upon which relief can be granted."
The court does not engage in fact finding at this stage of litigation. Rather, the court considers whether Dr. Redd has sufficiently alleged facts to state a claim on which relief can be granted.
Dr. Redd brings so-called Bivens claims, named after a case styled Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The Supreme Court in Bivens recognized an implied private action for damages against federal officers who violate a citizen's constitutional rights.
Defendants contend that they are entitled to qualified immunity. Qualified immunity "provides `immunity from suit rather than a mere defense to liability.'"
Dr. Redd alleges that Agent Love deliberately and falsely inflated the value of a bird pendant shell. Specifically, Dr. Redd contends that Agent Love knew that the bird pendant shell's actual value was between $75 and $100, which results only in a minor misdemeanor violation. But, as Dr. Redd alleges, Agent Love purposefully inflated the value of the pendant to $1,000 to obtain a felony arrest warrant against Dr. Redd, which enabled Agent Love to raid Dr. Redd's home.
"The Supreme Court has held that it is a violation of the Fourth Amendment to knowingly, or with reckless disregard for the truth, include false statements in the [warrant] affidavit outlining probable cause for an arrest."
Here, Dr. Redd has failed to include in his Complaint information regarding the warrant sufficient to make this determination. For example, although Dr. Redd argues that Agent Love knowingly inflated the bird shell pendant's value, Dr. Redd has failed to point to where or whether that false information was included in the warrant then issued. Dr. Redd has not pled, and this court cannot conclude that, even if false, the information Agent Love included in the warrant application was necessary to the probable cause determination that supported issuance of the warrant. In fact, Dr. Redd has altogether failed to mention the contents of the warrant or the contents of the warrant affidavit. Without this information, the court must conclude that Dr. Redd has not pled a plausible Fourth Amendment violation arising out of Agent Love's warrant application. The court must dismiss Dr. Redd's first cause of action.
Related to the first cause of action, Dr. Redd next alleges that the illegal warrant obtained by Agent Love also resulted in the illegal search of Dr. Redd's residence in violation of his Fourth Amendment rights.
Dr. Redd's allegations concerning the search are predicated on his conclusory allegation that Defendants obtained the warrant based on false information. As stated above, the court must dismiss the
Dr. Redd's third cause of action alleges that Defendants violated his Fourth Amendment protections from the use of excessive force. Specifically, Dr. Redd alleges that (1) Agent Love used an excessive number of agents, government vehicles, and weapons when executing the warrant at Dr. Redd's residence; (2) Agent Barnes humiliated Dr. Redd by using harsh language, and accusing him of crimes he knew Dr. Redd did not commit; and (3) Agent Barnes denied Dr. Redd the ability to use the restroom with dignity.
Dr. Redd alleges that Agent Love orchestrated a raid of Dr. Redd's home that involved over 80 heavily armed SWAT-like agents. Dr. Redd further alleges that Agent Love called even more agents to the scene during the course of the raid. After the raid, Agent Love allegedly admitted to Jerrica Redd, Dr. Redd's daughter, that close to 140 agents had been through Dr. Redd's house at some point. The court first examines whether Agent Love's actions implicate a constitutional right. The court then examines whether Dr. Redd has sufficiently alleged facts that would support a claim for a violation of a constitutional right. Finally, the court examines whether that constitutional right was clearly established at the time of the challenged conduct.
The court first considers whether Agent Love's alleged conduct implicates Dr. Redd's constitutional rights. Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179 (10th Cir.2001), is instructive on this issue. In Holland, the La Plata County Sheriff authorized a SWAT team (composed of ten deputies) to serve a warrant on an individual suspected of assault.
Similar to Holland, Dr. Redd alleges that Agent Love's planning to execute a warrant, and in particular his decision to deploy between about 80 to 140 agents to Dr. Redd's home, violated Dr. Redd's Fourth Amendment protections from the use of excessive force. At least in the Tenth Circuit, the court must examine the reasonableness of Agent Love's plan for executing the warrant, his decision to deploy so many heavily armed agents to Dr. Redd's home, and the manner in which the arrests of Dr. Redd and his family were carried out. In short, the allegations here at least implicate a constitutional right.
Having found that Agent Love's alleged actions implicate Dr. Redd's Fourth Amendment protection from the use of excessive force, the court must determine whether those alleged actions violated that protection. When examining whether an officer employed excessive force, the Supreme Court has held that "the question is whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent and motivation."
First, the court is cognizant of the cultural, religious, and historical significance of Native American artifacts. Trafficking in stolen Native American artifacts and theft of tribal property are issues of such importance that Congress has specifically criminalized the behavior. Yet, the single felony charge against Dr. Redd, and the alleged facts underlying the charge, compel the conclusion that in the overall scheme of federal criminal conduct, the crime with which Dr. Redd was charged is of comparatively low severity. For example, in contrast to massive drug-trafficking conspiracies, kidnapping, murder, and child sex offenses, the crime Dr. Redd was accused of committing was nonviolent and posed no immediate threat to anyone. Nothing about the Native American artifact trafficking charge at issue could objectively cause anyone to believe that Dr. Redd had the disposition to engage in a violent standoff with officers. Nothing about the alleged facts underlying the charge would suggest to a reasonable officer that 80 to 140 heavily armed agents in flak jackets were necessary to subdue and
Second, nothing about the alleged circumstances here suggest that Dr. Redd posed an immediate threat to the safety of law enforcement officers or others at the time Agent Love decided to execute the warrant. As noted, Dr. Redd was a respected doctor in the community with no known history of violence. Nothing in the record suggests agents believed Dr. Redd was engaged in criminal activity when the warrant was executed in the early morning hours of June 10, 2009. And while Dr. Redd arrived at his home shortly after agents began the raid, he was returning only from a morning visit to his clinic — not from any alleged criminal activity. Defendants point to the fact that Dr. Redd was a hunter who owned firearms. But this alone is not enough to suggest any immediate threat to the officers' safety in this instance.
Finally, there is no evidence at all that Dr. Redd or anyone at his home resisted arrest in any way during the execution of the warrant. At a minimum, it was unreasonable on the facts alleged in the Complaint for Agent Love to call more agents to Dr. Redd's home after he and his family were already sequestered, and posed no danger to anyone.
Viewing Dr. Redd's alleged facts as true, and viewing them in the light most favorable to him, the court must conclude that he has sufficiently alleged facts that support a claim against Agent Love for violation of his Fourth Amendment protection from the use of excessive force.
Having determined that Dr. Redd has alleged sufficient facts to support a claim against Agent Love for a violation of Dr. Redd's constitutional rights, the court must consider whether that right was clearly established at the time. Defendants contend that "[o]rdinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains."
But the Tenth Circuit has clarified that for a right to be clearly established, "the contours of a right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This means that there need not be precise factual correspondence between earlier cases and the case at hand.... A general constitutional rule that has already been established can apply with obvious clarity to the specific conduct in question, even though the very action in question has not previously been held unlawful."
Here, since the Graham factors weigh so heavily in favor of finding a violation of
When viewing the factual allegations in a light most favorable to Dr. Redd, the court concludes that Dr. Redd has raised sufficient factual allegations to support a finding that Agent Love's conduct violated a clearly established right.
Agent Love responds that the decision to use so many agents is reasonable because the agents gathered 112 boxes of evidence at Dr. Redd's residence.
As stated above, given the nonviolent nature of the crime at issue, the lack of threat to the officers' safety, and the absence of active resistance to arrest, the court finds that sending so many heavily armed agents, even to collect 112 boxes of evidence, violated a clearly established right against the use of excessive force in violation of the Fourth Amendment.
Dr. Redd alleges that Agent Barnes violated Dr. Redd's constitutional rights when he called Dr. Redd a liar, accused him of unlawful activity, taunted him with revocation of his medical license for felony convictions, and asserted he would never practice medicine again. In addition, in an apparent reference to the previous state charges, Agent Barnes allegedly pointed to a set of gardening tools and asked Dr. Redd with which of the shovels he liked to dig up bodies.
In Wheeler v. Scarafiotti, 85 Fed.Appx. 696 (10th Cir.2004), the Tenth Circuit held that an officer "screaming at the defendants to raise their hand, having his hand near his holstered weapon, and threatening possible incarceration [] was objectively reasonable" when the officer stopped the defendants in a truck that was driving off of an established road.
In view of these cases suggesting that harsh language, threats, and screams directed at individuals do not violate a clearly established constitutional right, the court concludes that the actions allegedly undertaken by Agent Barnes did not violate a clearly established right. Agent Barnes is entitled to qualified immunity.
Dr. Redd alleges that Agent Barnes violated Dr. Redd's constitutional rights under
The Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), held that "purpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities."
To determine whether Agent Barnes was responsible for his subordinates' acts that caused the alleged constitutional harm, the court must first determine whether those acts violated the Constitution. In Nielsen v. Bixler, No. 8:04CV583, 2006 WL 1401711 (D.Neb. May 19, 2006), the District Court of Nebraska held that there was no constitutional violation when an officer did not "permit [plaintiff] to use a nearby bathroom or to leave the front seat of the patrol unit ... [to perform] a feminine hygiene procedure which was immediately required to prevent the leakage of blood through her clothing and into the seat of [the officer's] patrol unit."
While these cases are not factually identical to the case at hand, they provide helpful references. Especially given the lack of contrary authority from Dr. Redd, these cases support the conclusion that officers did not violate Dr. Redd's constitutional rights when they escorted him to the bathroom. The court finds that the unidentified agents' actions did not violate a clearly established right. It necessarily follows that where the unidentified agents did not violate a clearly established right, their supervisor, Agent Barnes, is free from vicarious liability for the alleged constitutional violation. Agent Barnes is entitled to qualified immunity on this claim.
But, even if the court found that the actions of the unidentified agents violated a clearly established right, there is no allegation that Agent Barnes specifically
At oral argument, the Estate of Dr. Redd appeared to argue that the real issue was that "the use of handcuffs [in this circumstance was] unnecessary."
Here, Dr. Redd was charged with a felony, a charge more serious than that at issue in Silvan. In addition, Dr. Redd was a hunter, and most likely owned firearms, a situation more threatening (although only slightly so) than that encountered by officers in Silvan. In view of the Tenth Circuit determination that the handcuffing in Silvan (a situation with a less serious charge and with a less threatening situation) was reasonable, the court must conclude that officers did not violate a clearly established right by handcuffing Dr. Redd, and failing to take them off when he used to the restroom.
Dr. Redd alleges that Defendants discriminated against him as a "class of one" in violation of his equal protection rights. Specifically, Dr. Redd alleges that the Defendants singled him out as part of Operation Cerberus when other alleged artifacts traffickers were not prosecuted and treated as severely.
The Tenth Circuit explained that "[e]qual protection jurisprudence has traditionally been concerned with governmental action that disproportionally burdens certain classes of citizens."
Here, Dr. Redd has failed to adequately allege any similarly situated individuals were treated differently than Dr. Redd. For example, Dr. Redd alleges in a few sparse, entirely conclusory statements that other individuals arrested as part of Operation Cerberus were not treated the same as Dr. Redd. But Dr. Redd has made no allegations whatsoever identifying any such individuals, explaining how they were similarly situated to Dr. Redd, or stating how they were treated differently. Dr. Redd has failed to plead a plausible class-of-one claim. The court dismisses the fourth cause of action.
Dr. Redd asserts in his fifth and final cause of action that Defendants violated Dr. Redd's due process rights under the Fifth Amendment. The Tenth Circuit explains that "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are insufficient to support a claim "for relief that is plausible on its face."
Here, Dr. Redd alleges no particular agents, events, actions, or locations to support the allegation that Defendants violated Dr. Redd's due process rights. Rather, Dr. Redd simply concludes that this violation occurred. The court dismisses the fifth cause of action.
For the reasons stated, Defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART. (Dkt. 60.) The court DISMISSES the first, second, fourth, and fifth causes of action against Defendants. The court also DISMISSES the excessive force allegation against Agent Barnes in Dr. Redd's third cause of action. As all the causes of action against Agent Barnes are dismissed, the court DISMISSES Agent Barnes from the case.
