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• Law enforcement Trespasses Within the Curtilage of a Home
• Warrantless Vehicle Seizures and Exigent Circumstances
• The Automobile Exception to the Search Warrant Requirement

In order for the so-called “automobile exception” to the search warrant requirement to apply, it must be found that there is both probable cause to seize the vehicle at issue and exigent circumstances making it impractical to obtain a search warrant.  A car sitting unattended on someone’s private property does not presumptively provide the necessary exigent circumstances allowing for its warrantless seizure despite having probable cause to believe it contains evidence of a crime.

Defendant Donald Rorabaugh spent some time during the evening of May 23, 2015, at the 108 Sports Lounge (aka, the “108 Bar”) in the town of Riverbank, San Joaquin County.  While there, an acquaintance introduced defendant to a man named Joseph Denner, who was soon to become the co-defendant in this case. Edward Magana also frequented the 108 Bar, occasionally (on prior occasions) sharing a drink with defendant.  Magana was known to all in the area, having no fixed address and crashing at night where he could.  He was known to commonly carry his meager belongings in a black backpack.  Defendant lived with his father in Riverbank. He drove a 1966 Oldsmobile Cutlass which was “very loud,” due to a faulty engine and muffler.  Defendant commonly kept his car on the property of a friend (David Christensen), some three minutes from defendant’s home, where he would do mechanical work on it.  Back to the night of May 23rd/24th, defendant left the 108 Bar at about 1:45 a.m., hitching a ride home from friends.  These friends later testified that when they dropped him off at his home, he met a man carrying a black backpack.  Denner left the bar shortly after defendant.  Defendant’s father heard defendant being dropped off at around 2:30 a.m., saw him enter their garage where he normally slept, and then heard his car leaving several hour later.  At some time after 2:30 a.m., a couple who lived on a nearby rural piece of property were woken up by their dogs barking.  The wife let the dogs out when she heard a vehicle.  The dogs continued to bark despite the car’s engine stopping.  Fifteen minutes later, she heard the car start up again and “peel out.”  Later that morning, the wife found a dead body in an irrigation canal that bordered their property.  The body was soon determined to be that of Edward Magana.  An autopsy later found that Magana had suffered a number of physical injuries to his body and head, any one of which could have been the cause of death.  The Court’s written decision did not describe what additional evidence might have been found connecting defendant and Denner to Magana’s murder, simply noting that the Stanislaus County Sheriff’s officers obtained search warrants on May 28th for both of their homes.  The warrants listed among the items to be seized and searched “unknown vehicles.” Upon executing the warrant at defendant’s home (during which he was arrested), it was discovered that his Cutlass was currently at David Christensen’s ranch. The officers therefore went directly from defendant’s home to the ranch where his car was in fact found sitting in a field some 200 yards from Christensen’s house.  Seizing the car, they towed it to the Stanislaus County Sheriff’s office in Modesto where it was stored until another search warrant could be obtained.  When searched, blood was found in the trunk of the car that DNA later matched to Magana.  A DNA swab from the steering wheel matched defendant’s DNA.  Denner was also identified as a “major contributor” to DNA on a passenger door handle.  Both defendant and Denner were charged in state court with Magana’s murder.  Pretrial, defendant’s motion to suppress the DNA evidence found in his Cutlass was denied.  Both defendants testified at trial, with defendant denying any involvement in the murder.  Denner (who is not a party to this appeal) testified that defendant committed the murder and forced him to help dispose of Magana’s body.  Defendant was convicted of first degree murder and sentenced to 25-years-to-life in prison.  (Magana was also convicted, but of second degree murder.)  Defendant appealed.

The Third District Court of Appeal reversed.  In a very poorly written, confusing decision, it was noted that defendant’s initial argument dealt with the Stanislaus County Sheriff’s warrantless seizure of his car from what defendant alleged to be the curtilage of David Christensen’s home.  The People argued in a shotgun response that the so-called “automobile exception” excused the lack of a warrant, and that the car—physically being some 200 yards from Christensen’s house—was not within the curtilage of his home.  The People further argued that the car itself was evidence of the commission of the murder, rendering the warrantless seizure of the car lawful under the “instrumentality of the crime” exception to the warrant requirement.  It was also argued that defendant “had no reasonable expectation of privacy in the [landowner’s] home and property,” as he “did not reside” there and “was not an overnight guest.” Lastly, the People argued that “society is [un]willing to recognize as reasonable” a “subjective expectation of privacy in an open fields area.”  Not satisfied, the Court ordered the parties to supplement their briefings with a discussion of whether the warrantless seizure of defendant's car on private property was lawful under Coolidge v. New Hampshire (1971) 403 U.S. 443, and whether the automobile exception did in fact apply to the seizure.  Defendant, not surprisingly, argued that the automobile exception did not apply in the present case because the vehicle was parked on private residential property in which defendant had a legitimate expectation of privacy.  The People continued to argue that the automobile exception did apply to the warrantless seizure of defendant’s vehicle, “because the car was readily mobile and officers had probable cause to believe the vehicle contained evidence of a crime.” The Court held, however, that the automobile exception did not apply in the absence of exigent circumstance, despite the existence of probable cause to search it.  In such a situation, a warrant is required to both seize the car and then to search it.  (Citing Coolidge, at pp. 455-484.)  While a search warrant was eventually obtained to search the car in this case, it was initially seized without a warrant.  That warrantless seizure was the issue here. While an exigency justifying a warrantless seizure might be found when the vehicle is on the street in an uncontrolled setting, in this case the car was sitting by itself on Christensen’s ranch.  Coolidge rejected the argument that the vehicle’s warrantless seizure, as “an instrumentality of the crime,” could be justified merely because it was in “plain view.”  (Coolidge, supra, 403 U.S. at p. 464.)  The Supreme Court in Coolidge explained that the “plain view” exception applies only when a police officer has “a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused.” That “prior justification” might be during the execution of a search warrant for another object, hot pursuit, incident to arrest, or ”some other legitimate reason for being present unconnected with a search directed against the accused.” (Id. at p. 466.)  The Court ruled here that the officers were not lawfully on Christensen’s property.  The Court then rambled on citing a bunch of random rules relevant to the “plain sight” issue, finally noting that the Supreme Court dictated in Horton v. California (1990) 496 U.S. 128, at pp. 136-137, that “in the absence of consent or a warrant permitting the seizure of the items in question, such seizures can be justified only if they meet the probable-cause standard, [citation], and if they are unaccompanied by unlawful trespass.”  (Italics in original.)  Further, the Court noted that “the automobile exception does not permit an officer without a warrant to enter a home or its curtilage in order to search a vehicle therein.”  (Quoting Collins v. Virginia (2018) 584 U.S. ___ [201 L.Ed.2nd 9, at p. 24.)  Based upon the above, the Court held that the officers illegally entered Christensen’s property (but see Note, below) and that their warrantless seizure of defendant’s car was the illegal product of that entry.   In summation, the Appellate Court here held that that if (a) police do not have an otherwise lawful right of access to an unattended car on private property, and (b) it is not impracticable to obtain a warrant, then (c) warrantless seizure of the car accomplished by trespassing on private property (and subsequently searching the car at another location) is a violation of the Fourth Amendment, and does not fall within the automobile exception even if there was probable cause to search it.  In this case, defendant’s car was found on David Christensen’s property, some 200 yards away from his home.  The Court found this not to be within the curtilage of Christensen’s home.  But no one asked Christensen for permission to come onto his property (the house being inside a gated private driveway that is ¾’s of a mile long) or to tow defendant’s car from the property.  Per the Court: “The record is devoid of any indication police had a lawful right of access to defendant’s car that was on Christensen’s private property with the latter's knowledge and consent.”  Further, the Court found “no support in the record for the notion that defendant’s car was ‘readily mobile’ when police seized it.” The record is also devoid of any suggestion that it was impracticable to secure a warrant once police located and identified defendant’s unattended vehicle on Christensen’s land at 3:00 p.m., around one hour after they obtained a warrant for ‘[u]nknown vehicles’ at defendant's home.”  Lastly, the Court also noted that there wasn’t any exigency in that defendant was in custody (having been arrested when the warrant was executed at his home) and Christensen did not have a key to the car.  The Court thus found that the officers violated the Fourth Amendment when they seized defendant’s vehicle under these circumstances and that the evidence seized from defendant’s car in the subsequent search should have been suppressed. 

As I hinted to above, this is probably the most confusing legal analysis I’ve ever read coming out of an appellate court.  And try as I might, I could find no reason why the officers weren’t entitled to approach David Christensen’s front door to make contact with him despite it being within the curtilage of his home, just like any other social visitor might. (See People v. Williams (2017) 15 Cal.App.5th 111, 121; People v. Chavez (2008) 161 Cal.App.4th 1493, 1500.), the Court simply holding instead that the officers were “trespassing.”  (I.e., at pg. 313: “Here, police had no prior justification for their trespass on Christensen’s private property.”)  Also, the Court ignores the “Open Fields Doctrine” altogether, where areas of one’s property outside the curtilage of a residence have been held not to be protected by the Fourth Amendment.  (Oliver v. United States (1984) 466 U.S. 170; United States v. Jones (2012) 565 U.S. 400, 404-413; Florida v. Jardines (2013) 569 U.S. 1.)  And I still don’t understand how defendant could be held to have had “standing” (i.e., a “reasonable expectation of privacy”) to contest whatever searches or seizures were done on Christensen’s property.  It’s long been a rule that only the person whose rights are being violated has “standing” to challenge an alleged governmental constitutional violation.  (Rakas v. Illinois (1978) 439 U.S. 128, 138-139.)  I feel like after reading (and rereading) this case multiple times, the Court was just trying to dazzle us with their footwork rather than provide a coherent, organized, legally supportable decision.  But be that as it may, the only supportable legal conclusions I can see the Court making in this case is (1) that the “seizure” of a vehicle is as much of a Fourth Amendment issue as is its subsequent “search,” and that despite what we might have all believed, (2) the so-called “Automobile Exception” to the search warrant requirement does not allow for a vehicle’s warrantless seizure (or search) absent a showing of exigent circumstances over and above its potential (but unproved) mobility. 

NOTE:  Please click here to review additional information regarding this case by Faculty member Raymond Hill. 

• Patdown for Weapons
• Reasonable Suspicion vs. a Hunch That a Person May be Armed

A patdown for weapons is illegal absent sufficient reasonable suspicion to believe the subject may be armed.  An officer’s knowledge that a detained individual has a prior weapons offense on his record, but with no indication that violence might have been involved, is legally insufficient to justify a patdown for weapons.

Vacaville Police Officer Chris Hill was on patrol at around 1:30 a.m. on January 3, 2020, when he observed defendant Juan Pantoja driving “rather quickly” (although within the 25 mph speed limit) while making a right turn onto Brown Street, in an area referred to as a “high-crime area.”  Officer Hill decided to follow defendant.  Noticing that his license plate light and his third brake light located in the rear window were not working, he decided to make a traffic stop.  As defendant pulled into an apartment complex parking lot, Officer Hill turned on his overhead lights and initiated the traffic stop.  Contacting defendant (the vehicle’s sole occupant), Officer Hill vaguely recognized him, noting that defendant was wearing a “baggy,” hooded sweatshirt.  When defendant identified himself by providing his driver’s license, Officer Hill remembered him—as he wrote in his police report—as having “a history of violence and firearm possession, and (that) he was at the time an investigative lead in a homicide.” However, in later testimony, Officer Hill was unable to recall any specific crimes of violence in which defendant might have been involved.  And the homicide case referred to above apparently was something in which he was no more than a witness.  Officer Hill did testify to having had prior contacts with defendant a handful of times, and that he “also (had) seen his name in briefing logs.” Additionally, Officer Hill “thought” he’d transported defendant once when defendant was arrested for possession of firearms.  However, the officer acknowledged in testimony that he was unable to recall having any personal contacts with him when a crime of violence was involved.  Back to the circumstances of the traffic stop, Officer Hill testified that he did not notice anything that might have been considered unusual (e.g., no smell of marijuana, no contraband in plain sight, and no indication defendant might have been drinking.)  A records check showed that defendant’s license was valid and that he was not on probation or parole, defendant telling the officer he’d completed probation two years earlier (i.e., 2018).  In response to Officer Hill’s questioning, defendant gave a logical explanation as to why he was out so late (buying a burrito).  Asked if he had any marijuana in the car, defendant claimed he never touched the stuff.  Even though Officer Hill did not have any reason to search defendant’s car, he asked for permission to do so anyway.  Defendant declined.  Despite all of the above indications that there was nothing unusual occurring during this contact (aside from his refusal to let Officer Hill search his car), the officer asked defendant to get out of the car and put his hands behind his head because he was going to issue him a citation for the vehicle’s lighting infractions.  In later testimony, Officer Hill stated that he “elected to remove him from the vehicle and pat him down so that (he) could compete the citation,” inferring, apparently, that this was necessary in order to write the ticket safely. Asked by the prosecutor whether he believed “defendant was armed or dangerous at that moment,” Officer Hill responded:  “He was wearing baggy clothing.  He had [a] hoodie on and jeans. The hoodie naturally has bulges in it, so based upon defendant’s history of weapons, I elected to remove him from the vehicle and pat him down so I can complete the citation.”  Officer Hill, however, failed to mention in his police report any bulges in defendant’s clothing.  And he acknowledged in testimony that it was cold outside at the time of the traffic stop.  Asked a second time by the prosecutor if he believed defendant was presently armed and dangerous, Officer Hill testified: “There's a good possibility or chance, yes.”  It was also noted, however, that although defendant did not make any furtive gestures or other sudden movements, he did appear “to get nervous” when he was told that the officer was about to pat him down.  The patdown resulted in the recovery of a loaded pistol in his waistband area, underneath his sweatshirt hoodie.  Being charged in state court with being a felon in possession of a firearm (Pen. Code § 29800(a)(1)), defendant filed a motion to suppress.  After hearing the above evidence, the trial court granted defendant’s motion, finding the patdown to be illegal. With the case against defendant being dismissed, the People appealed.

The First District Court of Appeal (Div. 2) affirmed.  The issue on appeal, as it was in the trial court, was the legality of the patdown for weapons under the circumstances of this case.  Such a limited search for weapons has long been recognized as lawful whenever “a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.”  (King v. State of California (2015) 242 Cal.App.4th 265, 282; citing Terry v. Ohio (1968) 391 U.S. 1.)  Under such circumstances, a patdown of a detained person for weapons has been consistently upheld by the courts.  However, such a search violates the Fourth Amendment absent the officer being able to articulate sufficient facts to establish at the very least a “reasonable suspicion” to believe that the suspect may be armed.  As noted by the Court: “‘The sole justification of the search . . . is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.’ ([Terry, supra, 392 U.S.] at p. 29.) The officer must be able to point to specific and articulable facts together with rational inferences therefrom which reasonably support a suspicion that the suspect is armed and dangerous.” (People v. Dickey (1994) 21 Cal.App.4th 952, 956. . . .) “[A]n ‘inchoate and unparticularized suspicion or “hunch”’ is insufficient.” (Italics added; In re Jeremiah S. (2019) 41 Cal.App.5th 299, 305.)  In this case, the only factors the officer could point to that might have indicated to him that defendant was armed was that the area was known as a high crime area and the officer’s somewhat vague (or at least poorly described) recollection that defendant had a prior history of being involved in an offense that involved weapons.  Although noting in his report that defendant also had a history of violence, when pressed on the issue while testifying, he could not recollect any such instances.  The fact that defendant had been off probation for some two years indicated that any prior offenses had to have been some time well before his arrest here.  Being in a so-called “high crime area” by itself is clearly insufficient to justify a patdown.  If it were otherwise, anyone and everyone caught in that area could be patted down for weapons.  Secondly, having a prior history of weapons offenses is also of little significance.  The case law clearly establishes the rule that a person’s history of weapons offenses is insufficient, by itself, to justify a patdown.  Here, Officer Hill testified that he was aware of defendant having been arrested on one occasion for the illegal possession of a firearm.  But that arrest, based upon the record as established here, was years before. There is federal authority from other jurisdictions holding that a person merely having criminal record by itself, even if it involved a firearm, is not sufficient to create a reasonable suspicion to believe that he may be armed.  (See United States v. Foster (4th Cir. 2011) 634 F.3rd 243, 246; United States v. Mathurin (3rd Cir. 2009) 561 F.3rd 170, 177; United States v. Davis (10th Cir. 1996) 94 F.3rd 1465, 1469; United States v. Sandoval (10th Cir. 1994) 29 F.3rd 537, 542.)  Even when combined with the fact that a person with such a criminal history is found to be in a “high-crime area,” to allow an officer to pat that person down for weapons casts too broad a net to be constitutionally permissible.  Other than that, the People argued that the fact that defendant was wearing a baggy sweatshirt was a relevant factor.  The Court disagreed, noting that defendant’s clothing choices were consistent with the ambient temperatures at that time of night, and that the officer did not testify to having seen any suspicious bulges in defendant’s clothing that might have signaled the presence of a weapon.  Aside from this, defendant here was totally cooperative.  His refusal to consent to a search of his vehicle was within his rights, and cannot be later used as a factor indicating that he might have been armed. As for defendant’s connection to a pending homicide investigation, Officer Hill knew no more than that he was “an investigative lead in a homicide.”  Nothing else occurred that Officer Hill could use as an indication that defendant might have been armed.  As such, the Court held that the People failed to establish that patting defendant down for weapons under these circumstances was supported by an articulable reasonable suspicion that he might be armed, and was thus illegal.

The People did cite one case that seemed to support the legality of the patdown in this case:  People v. Bush (2001) 88 Cal.App.4th 1048.  In Bush, the appellate court made a very interesting observation:  “In our job as appellate court judges, we have been called upon to review hundreds upon hundreds of criminal convictions. Our experience has led us to the conclusion that, unfortunately, felons convicted of illegal weapons offenses (in the past) often later carry concealed weapons, and they do so more than six years after an initial conviction. Moreover, while some persons who are ‘very violent’ reform such tendencies, many, many others do not.”  (pg. 1053.)  But the Court here differentiated Bush from the situation with which Officer Hill was faced, noting that the defendant in Bush had a history of violence in addition to the weapons possession.  (See pg. 1050:  “(T)he dispatcher further informed the officer the driver ‘had a history of violence, possession of weapons and was reported to be a kick-boxer.’”) In contrast, Officer Hill knew no more about this defendant other than that he had apparently been arrested once before for a weapons-related offense, suffered a felony conviction as a result, and was subsequently on probation which had ended some two years before.  So am I going to criticize Officer Hill for patting defendant down under these circumstances?  Not at all!  I might note that both he and the prosecutor could have been better prepared for Officer Hill’s testimony at the motion to suppress, it all being a little vague as to what Officer Hill knew about defendant and didn’t know.  But we probably would have lost this case anyway.  That having been said, my philosophy has always been: “When in doubt, pat the sucker down!”  So long as you have some reason for believing that he may be armed, it’s better to err on the side of caution and do that patdown. Had Officer Hill not patted Juan Pantoja down, he could be dead today.  The up side to all this, despite having the gun suppressed and the case dismissed, is that Officer Hill is alive and an illegal gun has been taken off the street.  I would classify this as a “win-win” situation for the Good Guys.

• The Eighth Amendment Cruel and Unusual Punishment
• A Bivens Remedy for Federal Prison Inmates

A “Bivens remedy” is available to a prison inmate who alleges an Eighth Amendment cruel and unusual civil suit against a federal law enforcement corrections officer.

Marcellas Hoffman was a federal prison inmate, housed at the U.S. Atwater Penitentiary.  His prison job was as a cook; assigned to the kitchen detail.  In this capacity, he proposed an improved procedure to reduce waste in the food-service department; his proposal being approved all the way up the line to the prison’s warden.  For reasons not discussed in this case decision, this pissed off a corrections officer by the name of Timothy Preston.  Hoping to get Hoffman removed from the kitchen detail, Preston is alleged to have told another correctional officer, in front of Hoffman and other prisoners, that “inmates are snitching in the staff dining hall and writing the (staff members’) names down who are not paying for meals.”  Suspecting that Preston was talking about him, Hoffman denied that he was snitching on anyone.  A heated argument between the two resulted in Preston putting Hoffman in a holding cell, and then later moving him to what the Court referred to as “the Special Housing Unit.”  It was also alleged that following this incident, Preston “repeatedly and publicly labeled Hoffman as a snitch, telling other prisoners that Hoffman was reporting staff . . . for not paying for their meals.”  Preston made it clear that he wanted Hoffman kicked off the kitchen detail.  He was also alleged to have offered a bounty to specific prisoners, offering to pay them to harm Hoffman.  As result, another prisoner did in fact physically assault Hoffman, causing significant injuries.  Hoffman alleged in a later-filed administrative complaint that this attack was “as a direct result” of Preston’s actions.  As a result, Hoffman was eventually transferred to a different prison.  However, with his reputation as a snitch firmly established and following him wherever he went, the threats from other prisoners and staff continued nonetheless. Hoffman eventually filed a complaint against Preston pursuant to the prison’s administrative procedures—pursuant to the Prison Litigation Reform Act (“PLRA”); 28 U.S.C. § 1915A(a)—alleging “cruel and unusual punishment,” as prohibited under the Eighth Amendment.  Hoffman’s complaints eventually wormed its way up to the federal district court (following what the Court here referred to as a “complicated procedural history”) pursuant to authority under the U.S. Supreme Court decision of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971) 403 U.S. 388 (see below).  The federal district court granted Preston’s motion to dismiss, finding that Bivens did not provide Hoffman with a remedy for his complaints.  Hoffman appealed.

The Ninth Circuit Court of Appeal, in a split (2-to-1) decision, reversed.  The issue on appeal was whether Hoffman had available to him what is referred to as a “Bivens remedy” when, as here, it was alleged that he suffered an Eighth Amendment “cruel and unusual” violation at the hands of a federal officer.  The cruel and unusual violation alleged here was perpetrated by the civil defendant (i.e., Timothy Preston), a federal officer, exhibiting a “deliberate indifference to Hoffman’s health and safety as a prison inmate.”  The “deliberate indifference” in this case, as alleged by Hoffman, was exhibited by Preston telling others that Hoffman had reported prison staff members for not paying for their meals and in retaliation for him writing and submitting a Food Service Proposal, allegedly resulting in an attempt to get him (Hoffman) removed from the kitchen detail.  It was also alleged that in retaliation for the above actions on Hoffman’s part, “Preston took affirmative steps to target Hoffman for harm by repeatedly and publicly labeling him as a ‘snitch,’ and offering a reward to other inmates to harm him.”  It was further alleged that “Preston did not merely know of a risk of substantial harm; he intentionally and knowingly created the risk.”  The problem in this case is that in order to litigate this issue in a federal court, Hoffman must have available to him a legal vehicle by which to do this.  Title 42 U.S.C. § 1983 is the statutory authority (i.e., “legal vehicle”) used by a plaintiff when suing a state officer.  Preston, however, is a federal officer, eliminating section 1983 as an appropriate tool to use in this case.  To fill this void, the U.S. Supreme Court, in 1971, recognized “an implied right of action” for damages against federal officers, “arising directly under the Constitution.” The case authority describing this theory is Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, supra.  The Supreme Court also, however, has cautioned against applying the so-called “Bivens remedy” too broadly.  Per the High Court; “special factors . . . counsel hesitation” in over-using a Bivens theory of liability, telling lower courts to consider whether the judiciary is well suited, absent congressional action or instruction, to use this theory, while weighing the costs and benefits of allowing a damages action to proceed.   (Ziglar v. Abbasi (2017) __ U.S. __ [137 S.Ct. 1843].)  The Supreme Court made it clear in Ziglar v. Abbasi that “expanding the Bivens remedy is now a disfavored judicial activity,” although a Bivens remedy is still available in appropriate cases where there are “powerful reasons” to retain it in its “common and recurrent sphere of law enforcement.”  (Id., at 137 S.Ct. at p. 1857.)  The entire decision here—and the issue about which the dissenting opinion disagreed—dealt with whether Hoffman’s complaints against Preston constituted an appropriate case in which to use the Bivens remedy.  So far, The Supreme Court has approved the use of the Bivens remedy in three areas of the law. (1) The Bivens case itself specifically held that damages were recoverable against federal officers who violated the Fourth Amendment’s prohibition against unreasonable searches and seizures.  (2) The Court later explicitly extended the Bivens remedy to an implied damages claim under the Fifth Amendment’s due process clause for gender discrimination by a member of the United States Congress. (Davis v. Passman (1979) 442 U.S. 228, 230.) (3) Lastly, Bivens was held to be appropriate when litigating an implied claim under the Eighth Amendment’s cruel and unusual punishment clause for prison officials’ failure to provide adequate medical care.  (Carlson v. Green (1980) 446 U.S. 14, 16-18, & fn. 1.)  In reversing the trial court’s dismissal of Hoffman’s case, the majority of this Ninth Circuit panel held here that “it is but a modest extension (of Bivens) to allow a suit against a guard who creates the substantial risk of harm and then allows it to occur.”  The majority also ruled that they found “no special factors that counsel against allowing a Bivens remedy in this context.”  The problem is, the Supreme Court has not told us what constitutes such “special factors” and when they might apply in the Bivens context, leaving it to the lower courts to figure this out on a case-by-case basis and without any higher court guidance. In a long and convoluted discussion, the majority of the Court ruled here that although the factual circumstances in this case are different from any prior case decision where Bivens was found to be appropriate, they could find no special factors that would prevent Hoffman from using Bivens in his attempt to prove Preston civilly liable for the issues he allegedly caused.  Quoting from one of this Court’s prior cases (See Lanuza v. Love (9th Cir. 2018) 899 F.3rd 1019, at p. 1028.), the Court noted that the Supreme Court in “Abbasi makes clear that, though disfavored, Bivens may still be available in a case against an individual federal officer who violates a person’s constitutional rights while acting in his official capacity.”  This is what Hoffman alleges that Preston did.  Finally, the Court held that Hoffman really had no other viable state or federal means to by which to litigate his complaints in seeking damages from Preston.  The majority of this Court, therefore, approved the use of Bivens in this context, allowing Hoffman’s allegations against Preston to proceed in federal court.

This is a long 35-page decision, with a 25-page dissent, discussing in excruciatingly painful detail the ins and outs of when Bivens applies and when it does not.  This, of course, is of little interest to local street cops and prosecutors.  But it is of immense importance to federal law enforcement officers and civil litigators who really need to read the entire case decision should he or she ever get involved in a federal-level Bivens-authorized civil suit.  I’ve briefed the Bivens issue before (see Boule v. Egbert (9th Cir. Nov. 20, 2020) 980 F.3rd 1309; California Legal Update, Vol. 26, #5, April 18, 2021.)  As I noted then, Bivens is really nothing more than judicial legislating necessitated by the failure of the U.S. Congress to act.  Title 42 U.S.C. § 1983, dealing with civil suits against state and local officers, could easily be expanded to include lawsuits against federal officers. Or, a whole new statute could be written that accomplishes the same thing, while spelling out the appropriate and (presumably) clearer boundaries of such a lawsuit.  It would certainly save a lot of ink for the courts in not having to publish such long and complicated decisions.