Eleventh Circuit: Availability of FTCA Counsels Hesitation in Extending Bivens
This month, in an unpublished opinion, the U.S. Court of Appeal for Eleventh Circuit found that the availability of agency regulations governing law enforcement’s use of force and remedies under the Federal Torts Claims Act barred the extension of Bivens.
During a 2021 traffic stop conducted by Homeland Security Investigations (HSI) Agents, Brandon Wimberly was killed and Johnny Watson suffered severe injuries. HSI Agents Kevin Selent and Andrea Randou were working with local Florida law enforcement to investigate a mail-and-wire elder fraud scheme in Miami. During the investigation, the Agents intercepted a package with $12,000 cash sent by an elderly individual in Maryland to a vacant address in Florida. A magistrate judge signed a warrant authorizing the installation of a tracking device in the package.
Wimberly and Watson waited in a vehicle for the packages’ delivery at the vacant Florida address and retrieved it after it arrived. Agents Selent and Randou then followed Wimberly and Watson’s vehicle. The vehicle made several erratic turns, signaling to the Agents that the occupants knew they were under surveillance. The Agents then pulled over the vehicle and approached the vehicle with their guns drawn. Wimberly adjusted the vehicle’s wheels to face toward Agent Selent and then the vehicle lurched toward him. The Agents also saw Wimberly reach for a dark object near his waistband.
Agent Selent fired 22 shots, killing Wimberly and hitting Watson in the shoulder. Watson attempted to jump out of the passenger seat, but he was partially wrapped up in the seatbelt. After commands for Watson to show his hands failed, Agent Selent kicked Watson in the face. Watson then showed his hands, not in possession of a weapon. Backup arrived on the scene, and a search of the car revealed a handgun with Wimberly’s DNA on it.
Wimberly’s widow and Watson filed suit against the Agents and United States alleging a Fourth Amendment excessive force violation under Bivens, a negligent infliction of emotion distress of Watson under the FTCA, and assault and battery of Watson under the FTCA. The district court dismissed the Bivens and negligent infliction of emotion distress claims. The assault and battery claim proceeded to a bench trial and found that Watson failed to prove his claim. Wimberly’s widow and Watson appealed.
On appeal, the Eleventh Circuit first reviewed the Bivens claim. Citing the Supreme Court’s decision in Egbert v. Boule, the Eleventh Circuit explained that the two-step Bivens framework “often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.”
The Eleventh Circuit found that the district court properly ruled that a Bivens claim could not proceed. It stated the mission of the agency emphasizes its “global nature” in combatting crime from “global threats” and that the case at issue concerns the reasonableness of force during a vehicle stop while serving this mission.
The Eleventh Circuit zeroed in on alternative remedial structures in place, stating that “Appellants hold alternative avenues for relief under either the federal regulations, see 8 C.F.R. §§ 287.8, 287.10, or the FTCA.” The court of appeals noted that Watson pursued claims under the FTCA in this case. According to the court, this case amounted to a “conventional” excessive-force claim and was insufficient to satisfy a Bivens claim. The court of appeals held that the case before it presented a new context with special factors that preclude a Bivens cause of action.
The Eleventh Circuit found that the district court also properly granted the Agents’ motion on the negligent infliction of emotion distress. However, it remanded the judgment on the assault and battery claim for further proceedings as a result of an error in the scope of the district court’s review.
Read the full case: Wimberly v. Selent
