Oliveras v. New York City

Background

Monet Oliveras alleged that, at approximately 4:00 a.m. on April 27, 2016, Robert Basile and Scott Vogel, officers with the United States Department of Homeland Security Investigations Special Response Team, used two flash bangs while executing an arrest warrant on the first floor of her apartment building. Oliveras alleged that the explosions occurred in the outdoor area beside her basement apartment, threw her backward, caused physical and psychological injuries, and shattered two windows. She also alleged that an unnamed officer in tactical gear prevented her from leaving temporarily and that officers did not provide an explanation or medical assistance.

The operative complaint asserted claims under the federal damages remedy recognized in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics and under 42 U.S.C. § 1983. The claims alleged false imprisonment and false arrest against the John Doe officer and excessive force against Basile and Vogel. The court noted that § 1983 does not apply to federal officials and dismissed those claims on that basis. The United States had previously been dismissed from the case for lack of subject-matter jurisdiction.

Rule 12(b)(6) and Bivens

The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal when a complaint does not state a claim for which relief can be granted. The defendants argued that Oliveras had not presented a legally recognized Bivens claim, that they were protected by qualified immunity, and that she had not alleged a Fourth Amendment violation.

The court explained that Bivens is a court-created damages remedy for certain constitutional violations by federal officers. The Supreme Court has approved that remedy in only three narrow settings: an unlawful search and arrest by federal agents, gender discrimination by a member of Congress, and inadequate medical care for a federal prisoner. Courts must use a two-step analysis before extending the remedy to a new situation: first, determine whether the claim arises in a new Bivens context; and second, determine whether special reasons counsel against creating the remedy.

Why the Court Found a New Context

The court held that Oliveras’s excessive-force claim arose in a new Bivens context. Unlike the original Bivens case, Oliveras was not the target of the arrest or an occupant whose home federal agents entered and searched. She alleged that she was an unintended bystander injured by flash bangs used outside her apartment while officers executed an arrest warrant against someone else. The court also emphasized differences involving the type of warrant, the location of the flash bangs, the officers’ conduct, and the lack of clear judicial guidance about this particular situation.

The court considered Terebesi v. Torreso, in which the Second Circuit addressed flash bangs thrown into the home of the target of a search warrant. It found that decision materially different because Oliveras alleged that the flash bangs were used outdoors during an arrest-warrant operation and unintentionally injured a non-target.

Special Factors and Alternative Remedies

The court then held that special factors counseled against extending Bivens. In particular, it treated the Federal Tort Claims Act as an alternative remedial structure. Although Oliveras’s earlier claims under that statute had been dismissed under the statute’s discretionary-function exception, the court reasoned that an alternative statutory scheme can weigh against creating a new constitutional damages remedy even when it does not provide the plaintiff a successful remedy in the particular case.

The court also reasoned that Congress, rather than the judiciary, should decide whether to authorize damages claims in this new context. It noted that Congress had not expressly created a damages remedy against the individual officers and had exempted the conduct at issue from government liability under the discretionary-function exception.

The court additionally stated that, even if a Bivens remedy were available, Oliveras likely had not alleged a Fourth Amendment seizure because the flash bangs were directed at the arrest target, not at her. It characterized her injuries as an unintended consequence of government action. In a footnote, the court further concluded that Basile and Vogel would be entitled to qualified immunity because the right not to be inadvertently injured by flash bangs was not clearly established under the relevant Supreme Court and Second Circuit precedent.

Disposition

Judge Katherine Polk Failla granted the defendants’ motion to dismiss and dismissed Oliveras’s claims. The claims against Basile and Vogel were dismissed with prejudice. The claims against the John Doe officer were dismissed without prejudice because Oliveras had not served that officer within the required period; the court recognized that the failure was not caused by inattention by Oliveras and understood that the government had been unable to identify the officer. The Clerk of Court was directed to terminate pending motions, adjourn remaining dates, and close the case.