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Terry v. Newell

United States District Court, Ninth Circuit

November 15, 2013

Kent Terry, et al., Plaintiffs,
William Newell, et al., Defendants.


DAVID G. CAMPBELL, District Judge.

Defendant Emory Hurley has filed a motion to dismiss (Doc. 52), as have Defendants William Newell, George Gillett, David Voth, Hope McAllister, Tonya English, and William McMahon (Doc. 53). The motions are fully briefed. For the following reasons, the Court will grant Defendants' motions to dismiss.[1]

I. Background Facts.

Plaintiffs are the parents of Border Patrol Agent Brian Terry, who was killed by Mexican drug cartel operatives while on duty in the Arizona desert on December 15, 2010. Defendant Emory Hurley is an Assistant United States Attorney ("AUSA"). Defendants William Newell, George Gillett, David Voth, Hope McAllister, Tonya English, and William McMahon are agents and officers with the United States Department of Alcohol, Tobacco, Firearms and Explosives ("ATF Defendants").

Plaintiffs allege that Mexican drug cartels funded and operated a firearms trafficking ring in the Phoenix-metropolitan area in 2009. Doc. 32, ¶ 77-78. Straw purchasers with clean backgrounds would certify to Federal Firearms Licensees that they were buying firearms for personal use and would then transfer them to cartel operatives. Id., ¶ 50, 79, 91. Plaintiffs allege that AUSA Hurley and the ATF Defendants "created, organized, implemented, and/or participated in a plan - code named Operation Fast and Furious' - to facilitate the distribution of dangerous firearms to violent criminals." Id., ¶ 2. The alleged strategy of Operation Fast and Furious (the "Operation") was to allow illegally purchased firearms to transfer into the hands of violent criminals, a practice known as "gunwalking." Id., ¶ 65. Such gunwalking, it was hoped, would result in the arrest of high ranking members of the Mexican drug cartel who were expected to procure the traced firearms from straw purchasers within the United States. Id., ¶¶ 78-79, 94. In furtherance of the Operation, AUSA Hurley and the ATF Defendants allegedly hindered other ATF agents and other law enforcement agencies from impeding the firearms trafficking conspiracy. Id., ¶ 94. Defendants intended to run interference with other law enforcement agencies until Defendants could obtain a wiretap which they believed would enable them to dismantle the entire organization. Id., ¶¶ 94, 111, 140, 143.

Plaintiffs allege the ATF Defendants identified Lone Wolf Trading Company as one source of weapons sold to straw purchasers. Defendants monitored straw sales by means of a hidden camera installed at Lone Wolf. Id., at 97. Plaintiffs allege that the ATF Defendants instructed Lone Wolf to continue making sales to suspicious purchasers and to share intelligence with them. Id., ¶ 100. Lone Wolf allegedly sold 619 weapons to straw purchasers between October 15 and December 31, 2010. Id., ¶¶ 107-08.

On December 15, 2010, Agent Terry was shot and killed in the desert near Rio Rico, Arizona, eighteen miles inside the U.S.-Mexico border. Plaintiffs allege that two of the weapons found at the scene had been sold by Lone Wolf and gunwalked by Defendants. Id., ¶¶ 121, 123, 160. Plaintiffs assert that their son's death resulted from Defendants' failure to intercept the illegally purchased weapons. Id., ¶¶ 418, 429. Plaintiffs' Bivens action relies on a state-created danger theory and seeks compensatory and punitive damages against AUSA Hurley, the ATF Defendants, and Lone Wolf for loss of familial association and on behalf of Agent Terry' estate, under the Fifth Amendment Due Process Clause. Id., ¶¶ 9-10, 428, 444, 448, 450.

II. Legal Standard.

Defendants move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). Defendants mount a facial attack on the Court's subject matter jurisdiction rather than contesting specific factual allegations of the complaint. In resolving such a facial challenge, the Court assumes all of Plaintiffs' factual allegations to be true and draws all reasonable inferences in their favor. Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009).[2]

III. Analysis.

In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics. 403 U.S. 388 (1971), the Supreme Court "recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights." Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). The Bivens court "proceed[ed] on the theory that a right suggests a remedy." Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009). Bivens allows a plaintiff to bring an action for damages against individual federal officials for violating the Fourth Amendment despite the absence of any federal statute authorizing such an action. See Bivens, 403 U.S. at 397. The Supreme Court has also recognized Bivens actions to redress violations of the Fifth and Eighth Amendments. See Davis v. Passman, 442 U.S. 228 (1979); Carlson v. Green, 446 U.S. 14 (1980).

Since its 1980 decision in Carlson, the Supreme Court has "consistently refused to extend Bivens liability to any new context or new category of defendants." Malesko, 534 U.S. at 68. The Court instead has asked whether Congress intended courts to devise a new Bivens remedy, and has declined to extend Bivens to embrace other constitutional violations. See, e.g., Chappell v. Wallace, 462 U.S. 296, 297 (1983) (declining to find an implied right of action for military personnel who allegedly suffered racial discrimination at the hands of superior officers); Bush v. Lucas, 462 U.S. 367, 368 (1983) (declining to find an implied right of action for a federal civil-service employee who allegedly suffered violations of his First Amendment rights); Wilkie v. Robbins, 551 U.S. 537, 561-62 (2007) (declining to find an implied right of action for a landowner who allegedly suffered harassment and intimidation by federal officials in violation of the Fourth and Fifth Amendments).

In Wilkie, the Supreme Court identified a two-step analysis for determining the appropriateness of a Bivens remedy. Id. at 550; W. Radio Servs. v. U.S. Forest Service, 578 F.3d 1116, 1120 (9th Cir. 2009). First, the Court determines whether "any alternative, existing process for protecting" the plaintiff's interests "amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages." Wilkie, 551 U.S. at 550. Such an alternative remedy raises the inference that Congress "expected the Judiciary to stay its Bivens hand." Id. at 554. "When the design of a government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, [the Supreme Court has] not created additional Bivens remedies." Schweiker v. Chilicky, 487 U.S. 410, 423 (1988).[3]

In Bush, the Supreme Court declined to recognize a Bivens action even though it assumed a First Amendment violation had occurred and acknowledged that "existing remedies do not provide complete relief for the plaintiff." 462 U.S. at 388. Noting that Congress is more competent than the Judiciary to carry out the necessary "balancing [of] governmental efficiency and the rights of employees, " the Court refused to "decide whether or not it would be good policy to permit a federal employee to recover damages from a supervisor who has improperly disciplined him for exercising his First Amendment rights." Id. at 389-390. "So long as the plaintiff ...

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