MT v. United States of America

• Court: District Court, S.D. California
• Decided: March 10, 2023
• Docket: 3:22-cv-00171
• Status: Unknown

Opinion

6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MT, a minor by and through his Guardian ) Case No.: 3:22-cv-00171-BEN-KSC Ad Litem VIKTORIIA ZUBKOVA; AT a ) 12 minor by and through his Guardian Ad ) ORDER GRANTING-IN-PART 13 Litem VIKTORIIA ZUBKOVA; and ) DEFENDANTS’ MOTION TO LEYLA BOROVIK, ) DISMISS PLAINTIFFS’ FIRST 14 ) AMENDED COMPLAINT Plaintiffs, 15 ) v. ) 16 ) [ECF No. 10] UNITED STATES OF AMERICA; 17 TRENT E. PETERSEN; and DOES 1 ) ) 18 through 30, inclusive, ) 19 Defendants. ) 20 21 I. INTRODUCTION 22 Plaintiffs Leyla Borovik, and both MT and AT, minors by and through their 23 Guardian Ad Litem Viktoriia Zubkova, bring this action against Defendants the United 24 States of America (the “United States”) and Trent E. Peterson (“Agent Peterson”). ECF 25 No. 4. Before the Court is Defendants’ Motion to Dismiss Plaintiffs’ First Amended 26 Complaint. ECF No. 10. The Motion was submitted on the papers without oral argument 27 pursuant to Civil Local Rule 7.1(d)(1) and Rule 78(b) of the Federal Rules of Civil 28 Procedure. See ECF No. 13. After considering the papers submitted, supporting 1 documentation, and applicable law, the Court GRANTS-IN-PART the Motion to Dismiss. 2 II. BACKGROUND 3 This case arises from alleged events that occurred during a raid by the Federal 4 Bureau of Investigation (“FBI”) of Plaintiffs’ home. 5 A. Statement of Facts1 6 On October 25, 2019, at 6:00 a.m., FBI agents, including supervising “FBI Agent, 7 Trent E. Peterson, conducted a paramilitary SWAT raid at Plaintiffs’ home with attack 8 canines, assault weapons, bull horns, and high intensity lights . . . to execute an arrest and 9 search warrant for alleged financial crimes” committed by Plaintiffs’ father. ECF No. 4 10 (“FAC”) at 2, ¶ 2; 6, ¶ 20. “Tuchinsky and his business partners had been charged with 11 bribing a Federal Express supervisor to obtain routes for their package delivery trucking 12 companies in Utah.” Id. at 7–8, ¶ 28. 13 In executing the warrants, Defendants forcefully banged on the door “in a manner 14 that would lead a reasonable person to believe the door was going to be involuntarily 15 breached,” and “screamed, ‘FBI, open the door.’” Id. at 6, ¶ 20. Plaintiffs’ father, Yevgeny 16 Tuchinsky, peacefully opened the door and “was held at gunpoint with bright lights 17 flashing in his face while numerous agents stormed the interior of the home in full 18 paramilitary SWAT gear and assault weapons.” Id. The “[a]ttack canines were held 19 outside the door,” and Tuchinsky was placed in handcuffs, shackled with leg irons, and 20 informed he was under arrest. Id. Tuchinsky told the “agents that the only other occupants 21 of the residence were his wife and two children, and pleaded with the [] agents ‘please do 22 not touch my children and wife.’” Id. at 6, ¶ 21. 23 MT, AT, and their mother, Leyla Borovik, were awoken “by a bullhorn ordering 24 them to come out with their hands above their heads.” Id. at 2, ¶ 2. Plaintiff MT is a six- 25

26 1 The majority of the facts set forth are taken from the FAC and for purposes of ruling 27 on the United States’ Motion to Dismiss, the Court assumes the truth of the allegations pled and liberally construes all allegations in favor of the non-moving party. Manzarek v. St. 28 1 year-old child, while AT is eight. Id. “MT emerged from his bedroom in his pajamas with 2 his hands raised and was paralyzed by fear as he was forced to watch his father being 3 arrested, handcuffed and shackled while a FBI agent pointed at [sic] weapon at him with 4 his finger on the trigger.” Id. at 6, ¶ 22. An “agent tagged MT with the laser of his assault 5 rifle on his chest, then on his forehead,” and Tuchinsky “pleaded with the agents not [to] 6 harm his child.” Id. Borovik emerged from her bedroom to lights being flashed in her 7 face, and “was commanded to walk through the hallway where she saw FBI agents in 8 paramilitary uniforms and bulletproof vests brandishing what appeared to be machine guns 9 pointed towards her six-year old son MT, who was still in his pajamas” and “sobbing 10 uncontrollably.” Id. at 7, ¶ 23. MT was “watching his father being held against the wall 11 with an assault weapon pointed at his head.” Id. “Borovik kept pleading to find out what 12 was happening, but the FBI agents refused to respond and Tuchinsky was unable to 13 respond.” Id. at 7, ¶ 24. 14 “The FBI agents resumed issuing the loud commands through the bullhorns, waking 15 eight-year-old AT who emerged from her bedroom, still wearing her top and 16 undergarments . . . .” Id. at 7, ¶ 25. As AT walked through the hall, Defendants continued 17 to shout commands and brandish their weapons, which caused Borovik, AT, and MT “to 18 be terrified the agents would shoot them.” Id. Defendants took MT and AT from Borovik 19 and “without the consent of either parent, [D]efendants took MT and AT into separate 20 bedrooms and conducted an interrogation behind closed doors.” Id. at 7, ¶ 26. AT was 21 detained by a male agent, without the consent or presence of her mother, wearing only a 22 top and undergarments. Id. at 2, ¶ 2. Borovik was also taken to a separate room for 23 interrogation, after which, she was allowed to get dressed. Id. at 7, ¶ 26. Agents then 24 continued to interrogate Borovik after she was dressed, “and MT and AT continued to be 25 detained in two separate rooms by agents behind closed doors.” Id. at 7, ¶ 27. 26 Plaintiffs allege “[t]here were no exigent circumstances that justified the display of 27 force and weapons or the removal of MT and AT from their parents.” Id. at 7, ¶ 28. 28 Tuchinsky was being charged with financial crimes, which “did not include weapons or 1 drug related matters,” and “there were no allegations or suggestion that the safety or 2 welfare of MT and AT were in jeopardy from anything other than the actions of the FBI 3 agents.” Id. at 7–8, ¶ 28. 4 Plaintiffs allege that “[t]he tactics were designed to, and did, threaten, intimidate, 5 humiliate, and coerce Plaintiffs Leyla Borovik and her two minor children.” Id. at 3, ¶ 3. 6 “As a result of the egregious and extreme conduct of [D]efendants, while acting in the 7 course and scope of their employment with Defendant U[nited States] as investigation and 8 law enforcement officers, MT, AT, and Leyla Borovik suffered extreme emotional distress 9 which has manifested itself in emotional and physical symptoms for which they have 10 suffered general and special damages.” Id. at 8, ¶ 29. Plaintiffs allege that “damages were 11 exacerbated by the fact that Defendant [] instituted forfeiture proceedings which seized the 12 funds and assets of [] [Borovik] and her husband that would have enabled the parents to 13 obtain and/or continue the counseling and therapy needed by MT and AT for the physical 14 and emotional distress they suffered as a result of the raid.” Id. at 3, ¶ 4. 15 B. Procedural History 16 On February 7, 2022, Plaintiffs filed their original Complaint and on February 16, 17 2022, Plaintiffs filed their First Amended Complaint. ECF No. 4 (“FAC”). On May 25, 18 2022, Defendants filed the instant Motion to Dismiss. ECF No. 10 (“Motion”). Plaintiffs 19 filed an Opposition and Defendants replied. ECF No. 11 (“Oppo.”); ECF No. 12 (“Reply”). 20 III. LEGAL STANDARD 21 Under Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed when 22 a plaintiff’s allegations fail to set forth a set of facts which, if true, would entitle the 23 complainant to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. 24 Iqbal, 556 U.S. 662, 679 (2009) (holding that a claim must be facially plausible to survive 25 a motion to dismiss). The pleadings must raise the right to relief beyond the speculative 26 level; a plaintiff must provide “more than labels and conclusions, and a formulaic recitation 27 of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citing Papasan 28 v. Allain, 478 U.S. 265, 286 (1986)). On a motion to dismiss, a court accepts as true a 1 plaintiff’s well-pleaded factual allegations and construes all factual inferences in the light 2 most favorable to the plaintiff. See Manzarek, 519 F.3d at 1031. A court is not required 3 to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678. 4 “Generally, unless the court converts the Rule 12(b)(6) motion into a summary 5 judgment motion, it cannot consider material outside the complaint (e.g., facts presented 6 in briefs, affidavits or discovery materials).” Phillips & Stevenson, California Practice 7 Guide: Federal Civil Procedure Before Trial § 9:211 (The Rutter Group April 2020). Thus, 8 in evaluating a Rule 12(b)(6) motion, review is ordinarily limited to the contents of the 9 complaint and material properly submitted with it. Van Buskirk v. Cable News Network, 10 Inc., 284 F.3d 977, 980 (9th Cir. 2002); Hal Roach Studios, Inc. v. Richard Feiner & Co., 11 Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). Courts may also consider any statements 12 made in a pleading or motion, including concessions made in plaintiff’s response to the 13 motion to dismiss as well as in response to any other pleading or motion. Fed. R. Civ. P. 14 10(c). 15 IV. DISCUSSION 16 Plaintiffs allege numerous tort violations through the Federal Tort Claims Act (the 17 “FTCA”), along with a Bivens claim for damages. Plaintiffs’ claims or elements thereof 18 depend on whether Defendants used excessive force when executing the search of 19 Plaintiffs’ home. As such, the Court analyzes the reasonableness of Defendants’ alleged 20 use of force before addressing the various tort claims and assertions of immunity. As set 21 forth below, the Court finds that Plaintiffs’ FAC states facts sufficient to support their 22 FTCA tort claims alleged against the United States but fails to state a Bivens claim against 23 any of the Defendants. Because the individual Defendants are immune from suit pursuant 24 to the FTCA, the Court does not reach the issue of qualified immunity. 25 A. Excessive Force 26 Claims made pursuant to § 1983 for excessive use of force during an arrest are 27 analyzed under the Fourth Amendment’s objective reasonableness standard. Graham v. 28 Connor, 490 U.S. 386, 395 (1989). To determine whether the force used is “objectively 1 reasonable,” the Court balances “the nature and quality of the intrusion on the individual’s 2 Fourth Amendment interests against the countervailing governmental interests at stake.” 3 Id. at 396. Although the right to use some degree of physical coercion to make an arrest is 4 well established, “[t]he test of reasonableness under the Fourth Amendment is not capable 5 of precise definition or mechanical application.” Id. (quoting Bell v. Wolfish, 441 U.S. 520, 6 559 (1979)). As such, “proper application requires careful attention to the facts and 7 circumstances of each particular case, including the severity of the crime at issue, whether 8 the suspect poses an immediate threat to the safety of the officers or others, and whether 9 he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 10 396 (citing Tennessee v. Garner, 471 U.S. 1, 8–9 (1985)). “The most important factor 11 under Graham is whether the suspect posed an immediate threat to the safety of the officers 12 or others.” Est. of Stanley v. City of San Jose, No. 22-cv-03000-VKD, 2022 WL 16837050, 13 at *4 (N.D. Cal. Nov. 9, 2022) (quoting Est. of Lopez by & through Lopez v. Gelhaus, 871 14 F.3d 998, 1005 (9th Cir. 2017)). 15 Defendants argue that “the FBI agents involved in Tuchinsky’s arrest did not use 16 any force against Tuchinsky’s family, let alone unreasonable force.” Motion at 8. 17 Defendants contend that the agents did not even touch Plaintiffs. Id. at 12–13. Defendants 18 argue “that law enforcement officers are entitled to do exactly what the FBI agents did here 19 – take reasonable precautions to ensure their safety and the safety of others during the 20 execution of valid warrants.” Id. at 15 (citing Graham, 490 U.S. at 396). Plaintiffs argue 21 that here, there was no justification for the amount of force used by the agents. Oppo. at 22 3. Plaintiffs explain that the crimes were financial in nature and “did not include weapons 23 or drug related matters which could pose dangers to Defendants.” Id. 24 In Thompson v. Rahr, the Ninth Circuit held that “pointing guns at persons who are 25 compliant and present no danger is a constitutional violation.” 885 F.3d 582, 586 (9th Cir. 26 2018) (quoting Baird v. Renbarger, 576 F.3d 340, 346 (7th Cir. 2009)). However, 27 Thompson involved a traffic stop, which is distinguishable from the case at hand, where 28 agents entered a home pursuant to an arrest and search warrant. See Thompson, 885 F.3d 1 at 584–85. In Michigan v. Summers, the Supreme Court reviewed whether the search of a 2 home and simultaneous detainment of the occupant was constitutional. 452 U.S. 692, 693 3 (1981). There, the search was for narcotics and conducted pursuant to a warrant. Id. at 4 693–94. The occupant was forced to remain on the premises during the search, before the 5 officers had probable cause to arrest him. Id. at 696–97. The Supreme Court found no 6 constitutional violation, holding that “for Fourth Amendment purposes, . . . a warrant to 7 search for contraband founded on probable cause implicitly carries with it the limited 8 authority to detain the occupants of the premises while a proper search is conducted.” Id. 9 at 705. Summers established that officers do have a right to detain persons occupying a 10 home that is the subject of a search warrant. In Summers, only the detention was at issue 11 and the search was for drugs, making it distinguishable from the case at hand, but the 12 holding indicates that reasonable force may be used to detain the occupants of a home being 13 searched. 14 In Motley v. Parks, the Ninth Circuit examined whether a law enforcement officer 15 was justified in pointing a gun at an infant during the search of a home, stating: 16 While it may have been reasonable for Kading to have drawn his firearm 17 during the initial sweep of a known gang member’s house, his keeping the 18 weapon trained on the infant, as he was alleged to have done, falls outside the Fourth Amendment’s objective reasonableness standard. Motley has stated a 19 constitutional violation. 20 21 Motley v. Parks, 432 F.3d 1072, 1089 (9th Cir. 2005), overruled on other grounds by 22 United States v. King, 687 F.3d 1189 (9th Cir. 2012). The time period in Motley was around 23 20 minutes. Id. at 1076. Motely’s holding therefore hinted at the time period during which 24 an officer may point a gun at a young occupant of a residence being searched. 25 In Avina v. United States, the Ninth Circuit found issues of material fact as to 26 whether agents used excessive force against two minor children during the search of a 27 home. 681 F.3d 1127, 1132–33 (9th Cir. 2012). There, the agents obtained a search 28 warrant for a mobile home, believing the vehicle belonged to a suspected drug trafficker. 1 Id. at 1128–29. Later, the agents discovered they wrote down the wrong license plate 2 number. Id. at 1129. In analyzing the plaintiffs’ FTCA claims for assault and battery, the 3 Court found that the force used against the adult male resident (i.e., forcefully pushing him 4 to the ground) was reasonable, because: (1) it was done during the initial minutes of the 5 search; (2) the man was not following the agents’ instructions; and (3) the agents had no 6 way of knowing that the man was not the suspected drug trafficker or an associate. Id. at 7 1132. As to the minor children, however, the Court stated: 8 [A] jury could find that the agents pointed their guns at the head of an eleven- 9 year-old girl, “like they were going to shoot [her],” while she lay on the floor 10 in handcuffs, and that it was excessive for them to do so. Similarly, a jury could find that the agents’ decision to force the two girls to lie face down on 11 the floor with their hands cuffed behind their backs was unreasonable. 12 13 Id. at 1132–33. 14 Finally, in Tekle v. United States, the Ninth Circuit held that a reasonable jury could 15 find excessive force, where federal agents held an eleven-year-old boy at gun point, while 16 executing a search and arrest warrant for the boy’s parents. 511 F.3d 839 (9th Cir. 2007). 17 The parents “were suspected of narcotics trafficking and tax-related offenses.” Id. at 842. 18 The agents were aware that the boy was in the home and when he stepped outside to take 19 out the trash, agents commanded him to turn around with his hands up. Id. At first, the 20 boy ran back to the house, not knowing the agents were talking to him. Id. at 843. When 21 the agents repeated themselves, the boy put his hands up and walked towards them. Id. 22 The boy was ordered to lay facedown on the driveway, while an agent held a gun to his 23 head and cuffed him. Id. The boy was pulled up by the cuffs and agents sat him on the 24 sidewalk for about 15 minutes. Id. After the father was apprehended, the boy’s cuffs were 25 removed and he was placed on a stool in the driveway, where fifteen to twenty agents 26 continued to point their guns at him. Id. Agents refused the boy’s request for his shoes 27 and spat on them. Id. The officers also made disparaging comments about the home 28 country of the boy’s parents. Id. The Ninth Circuit held that in this case, a jury could find 1 the officers used excessive force. Id. at 847. The Court reversed a grant of summary 2 judgment in defendant’s favor and allowed the boy’s FTCA claims for assault, battery, 3 false arrest, and IIED to go forward, stating there were issues of fact and that reasonable 4 minds could differ. See id. at 854–56. The Court focused on the fact that he was an eleven- 5 year-old child who presented no threat and was vastly outnumbered by law enforcement 6 personnel. See id. at 846, 849, 850, 855–56. 7 The facts of Avina and Tekle are most akin to the facts of the instant case, because 8 the plaintiffs were occupants of homes being searched (under warrant) and subsequently 9 brought claims under the FTCA alleging excessive force. Here, Plaintiffs allege similar 10 facts in that firearms continued to be pointed at them after it was clear they presented no 11 threat to the agents, and they were detained in an unreasonable manner. Reading the FAC 12 in the light most favorable to Plaintiffs, the Court finds that questions of fact remain as to 13 whether Defendants use of force was reasonable under the circumstances. 14 First, the crimes on which the arrest and search warrants were based were for alleged 15 financial crimes, which “did not include weapons or drug related matters,” indicating that 16 the suspected crimes were not crimes of violence. See FAC at 7–8, ¶ 28. In Summers, 17 Avina, and Tekle, the agents/officers conducting the searches were doing so based on 18 suspected drug violations. In Motley, there were potential gang associations. See Motely, 19 432 F.3d at 1076. The allegedly non-violent nature of the crimes at issue here, 20 distinguishes these cases and favors Plaintiffs’ argument that the “paramilitary raid” was 21 excessive under the circumstances. 22 Second, nothing in the FAC implies that Borovik, MT, AT, or even Tuchinsky posed 23 a threat to the FBI agents on the scene. After Tuchinsky “peacefully” opened the door, he 24 was held at gunpoint while handcuffed and shackled. Id. at 6, ¶ 20. While Tuchinsky was 25 being arrested, a firearm laser was allegedly aimed at the forehead of MT, while the agent 26 pointing the weapon allegedly held his finger on the trigger. Id. at 6, ¶ 22. The six-year- 27 old child, MT, was “paralyzed by fear” and “sobbing uncontrollably”—allegations that 28 make it unreasonable to assume MT was a threat to the agents. See id. at 6, ¶ 22; 7, ¶ 23. 1 After having lights flashed in her face, Borovik allegedly saw the firearms pointed at her 2 son and pleaded with the agents to figure out what was happening. Id. at 7, ¶¶ 23–24. 3 Eight-year-old AT then emerged from her room in a top and undergarments and as she 4 walked down the hall, Defendants brandished their firearms. Id. at 7, ¶ 25. An eight-year- 5 old girl walking down the hallway as instructed by the agents can hardly be read as a threat. 6 The FAC then alleges that agents continued to aim their weapons at Plaintiffs, causing 7 Borovik, AT, and MT “to be terrified the agents would shoot them.” Id. Though Plaintiffs 8 allegedly presented no threat, they were held at gunpoint, while agents took MT and AT 9 from Borovik’s arms and into separate bedrooms. At no point did Plaintiffs attempt to flee. 10 Construing these allegations liberally, Plaintiffs allege that they posed no threat to 11 the FBI agents on site. Whether there were exigent circumstances making the alleged 12 conduct reasonable can be fleshed out during discovery. At this stage in the proceedings, 13 however, the Court cannot say the use of force was reasonable. See Chew v. Gates, 27 F.3d 14 1432, 1443 (9th Cir. 1994) (“[W]hether a particular use of force was reasonable is rarely 15 determinable as a matter of law.”). As such, the Court proceeds to address Plaintiffs’ 16 claims under the FTCA2 and Bivens. 17 B. Federal Tort Claims Act 18 “When federal employees are sued for damages for harms caused in the course of 19 their employment, the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671–2680, 20 generally authorizes substitution of the United States as the defendant.” Hui v. Castaneda, 21 559 U.S. 799, 801 (2010). Defendants argue that Agent Peterson and the other individual 22 Defendant agents are immune from Plaintiffs’ FTCA claims, because “the FTCA explicitly 23

24 2 The Court notes there is an exception to the United States’ waiver of sovereign 25 immunity in the FCTA for violations of the Constitution. See 28 U.S.C. § 2679(b)(2(A). Plaintiffs’ only constitutional claim for relief is made under Bivens. Although Plaintiffs’ 26 Bivens claim cannot proceed, see infra Part IV.C., and as a result, the Fourth Amendment 27 excessive force claim consequently fails, the alleged use of unreasonable force can still inform Plaintiffs’ intentional tort claims made pursuant to the FTCA. As such, the Court 28 1 precludes the liability of any federal employee sued in his individual capacity for a tort 2 committed while acting within the scope of his employment.” Motion at 11–12 (citing 28 3 U.S.C. § 2679(b)(1)). Plaintiffs respond that to be immune from liability, the Attorney 4 General must issue a scope certification confirming that the employee was acting within 5 the scope of his employment. Oppo. at 12–13. Plaintiffs state that “[u]pon submission of 6 a scope certification, Plaintiffs will assert their claims under the [] [FTCA] solely against 7 the United States.” Id. at 13. Defendants replied that a scope certification seemed 8 unnecessary, given the FAC’s concession that Peterson and the other agents were acting 9 within the scope of their employment. Reply at 2. Even so, Defendants submitted the 10 applicable scope certification with their Reply, asserting that Peterson was acting within 11 the scope of his employment with the FBI. See ECF No. 12-1 at 1–2. 12 Plaintiffs concede that the Agent Peterson and the Doe Defendants were acting 13 within the scope of their employment, see FAC at 4–5, ¶¶ 13–14, and Defendants’ Reply 14 submits a scope certification as to Agent Peterson specifically. As such, the Court 15 concludes that Plaintiffs’ FTCA claims apply only to the United States.3 Accordingly, the 16 FTCA claims lodged against Agent Peterson and the Doe Defendants are DISMISSED. 17 However, as explained below, Plaintiffs plausibly state their FTCA claims against the 18 United States. 19 i. Assault and Battery 20 Defendants first argue that Plaintiffs allege assault and battery as a single claim for 21 relief when, in California, they are distinct. Motion at 11. Defendants further argue that 22 Plaintiffs have not alleged facts sufficient to support a claim for either assault or battery 23

24 3 The Court notes that 28 U.S.C. § 2680(h) provides an exception to the United States’ 25 waiver of sovereign immunity, barring claims for intentional torts, including assault, battery, and false imprisonment. There is an exception to the exception, however, for torts 26 committed by officers of the United States who are “empowered by law to execute 27 searches, to seize evidence, or to make arrests for violations of Federal Law.” See id. Accordingly, although the parties did not cite § 2680(h), they reached the correct 28 1 because none of the allegations “involve any touching of Plaintiffs, let alone touching with 2 unreasonable force.” Id. at 12. Plaintiffs respond that there is little doubt Plaintiffs have 3 stated a claim for assault, based on allegations that Defendants intentionally aimed their 4 weapons at Plaintiffs. Oppo. at 13–14. As to battery, Plaintiffs argue that: (1) actual 5 touching is not always required; and (2) reading the FAC in the light most favorable to 6 Plaintiffs, the Court can infer that physical touching occurred based on the allegation that 7 MT and AT were removed from their mother’s arms. Id. at 14–16. 8 a. Assault 9 The FTCA incorporates the substantive law of the state where the allegedly tortious 10 act occurred. To plead assault in California, a plaintiff must state that: “(1) defendant acted 11 with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a 12 harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched 13 in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was 14 about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) 15 plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing 16 plaintiff’s harm. So v. Shin, 212 Cal. App. 4th 652, 668–69 (2013), as modified on denial 17 of reh’g (Jan. 28, 2013) (citations omitted). 18 Defendants argue that Plaintiffs were not touched by the agents and that the actions 19 were justified by the valid warrant. However, assault does not require physical touching 20 and as stated supra, questions of fact remain as to whether the agent’s conduct was 21 reasonable or justified, even with the warrant. Although Plaintiffs were subdued and 22 presented no reasonable threat to the agents (according to the FAC), firearms were aimed 23 at Plaintiffs. The threat of being shot amounts to a threat of harmful or offensive contact. 24 The FAC further states how all Plaintiffs were terrified of being shot, and that the agents’ 25 “tactics were designed to, and did, threaten, intimidate, humiliate, and coerce Plaintiffs . . 26 . .” FAC at 3, ¶ 3. As such, Plaintiffs sufficiently pleaded psychic injuries from the threat 27 of being shot. Because Defendants make no further arguments, the Court finds that the 28 FAC sufficiently states a claim for assault against Defendant United States. Accordingly, 1 the Court DENIES Defendants’ Motion to Dismiss Plaintiffs’ FTCA assault claim against 2 the United States. 3 b. Battery 4 To state a claim for battery in California, a plaintiff must allege that: “(1) defendant 5 touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend 6 plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended 7 by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been 8 offended by the touching.” Shin, 212 Cal. App. 4th at 669. 9 Defendants argue that Plaintiffs’ claim for battery fails because there are no 10 allegations that any of the agents actually touched Plaintiffs. Defendants discount the 11 Court’s obligation to read the allegations in the light most favorable to Plaintiffs. Although 12 the brandishing of firearms does not constitute actual touching, there are other allegations. 13 The allegations also read that “Defendants, took MT and AT from [Borovik’s] embrace” 14 without either parent’s consent. FAC at 7, ¶ 26. Reading this allegation in the light most 15 favorable to Plaintiffs, the Court can reasonably infer that touching occurred when agents 16 took MT and AT out of their mother’s arms. As to MT and AT, the touching is clear 17 because they were “taken” from their mother by men who were yelling commands and 18 pointing firearms at them, and a reasonable person would be offended by this kind of 19 touching. There is also a reasonable inference that Borovik’s arms were touched or caused 20 to be touched when agents took the children from her embrace. The implied touching of 21 Borovik is likewise offensive, considering she had her children taken from her amidst the 22 alleged chaos occurring in her home. In addition, contrary to Defendants’ contention, 23 Plaintiffs sufficiently stated the agents’ intent to “threaten, intimidate, humiliate, and 24 coerce” Plaintiffs. Id. at 2–3, ¶ 3. The allegations thus state that Defendants intended to 25 harm Plaintiffs. 26 The Court only addresses the arguments set forth in the briefing and will not provide 27 arguments for Defendants as to the remaining elements of Plaintiffs’ battery claim. 28 Accordingly, Defendants’ Motion to Dismiss Plaintiffs’ battery claim against the United 1 States is DENIED. 2 ii. False Imprisonment 3 In California, a false imprisonment claim requires three elements: “(1) the non- 4 consensual, intentional confinement of a person, (2) without lawful privilege, and (3) for 5 an appreciable period of time, however brief.” Lyons v. Fire Ins. Exchange, 74 Cal. Rptr. 6 3d 649, 655 (Cal. Ct. App. 2008). Defendants argue that because the FBI agents were 7 acting pursuant to a valid warrant, “they were acting with lawful privilege and are immune 8 from liability as a matter of law.” Motion at 14. Plaintiffs respond that although officers 9 may detain occupants of a premise while searching pursuant to a valid warrant, the agents 10 were required to conduct the detention in a reasonable manner. Oppo. at 16. Plaintiffs 11 argue that here, the conduct was outrageous, and that Plaintiffs were not implicated in the 12 alleged bribery conspiracy giving rise to the warrant. Id. 13 Defendants rely on the validity of the warrant in arguing that their detention of 14 Plaintiffs was valid. A legal warrant does not immunize agents from an otherwise 15 unreasonable search. San Jose Charter of Hells Angels Motorcycle Club v. City of San 16 Jose, 402 F.3d 962, 971 (9th Cir. 2005) (quoting Lawmaster v. Ward, 125 F.3d 1341, 1349 17 (10th Cir. 1997)) (“When officers obtain a warrant to search an individual’s home, they 18 also receive certain limited rights to occupy and control the property; however, the Fourth 19 Amendment binds the officers such that the right to search a home concomitantly obliges 20 the officers to do so in a reasonable manner.”). As discussed supra, the allegations describe 21 the Plaintiffs being confined without their consent for an unreasonable period of time. 22 Although federal agents may detain persons occupying a home at the outset of a search, 23 continued confinement may become unreasonable at some point. Especially where two of 24 the Plaintiffs are young children. For purposes of Defendants’ Motion to Dismiss, the 25 Court cannot say as a matter of law that the detentions here were reasonable. Defendants 26 make no further arguments respecting Plaintiffs’ pleading of their false imprisonment 27 claim. Accordingly, Defendants’ Motion to Dismiss the claim against the United States is 28 DENIED. 1 iii. Intentional Infliction of Emotional Distress 2 To plead intentional infliction of emotional distress (“IIED”) in California, a plaintiff 3 must plausibly allege: “(1) extreme and outrageous conduct by the defendant; (2) the 4 defendant’s intention of causing, or reckless disregard of the probability of causing, 5 emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and 6 (4) actual and proximate causation of the emotional distress by the defendant’s outrageous 7 conduct.” Robles v. Agreserves, Inc., 158 F. Supp. 3d 952, 977 (E.D. Cal. 2016) (citing 8 Hughes v. Pair, 46 Cal. 4th 1035, 1050–51 (Cal. 2009)). 9 Defendants argue that “because the FBI agents were executing valid warrants and 10 did not use unreasonable force, they did not engage in ‘extreme and outrageous conduct’ 11 as a matter of law.” Motion at 14. Defendants argue the agents took reasonable precautions 12 to ensure their safety and the safety of others during the search. Id. at 15. Plaintiffs respond 13 that the agent’s conduct “is sufficiently extreme and outrageous to satisfy the pleading 14 requirements for intentional infliction of emotional distress under California law.” Oppo. 15 at 17. Plaintiffs further assert that “[i]t will be argued that the actions of the FBI agents 16 and U[nited States] was intentionally designed to terrorize the father into talking because 17 the criminal case was extremely weak.” Id. 18 Again, Defendants rely on their arguments that the warrants were valid and that they 19 did not use unreasonable force. However, at this stage in proceedings, neither of those 20 contentions are settled facts. As such, for the same reasons stated supra, the Court rejects 21 Defendants’ arguments that their conduct was reasonable based on the warrants. The 22 allegations that agents, while executing warrants related to financial and non-violent 23 crimes, continued to aim firearms at a mother and her young children after determining 24 that they presented no threat—along with the bright lights, bullhorns, and attack canines— 25 present a plausible inference that the agents’ conduct was extreme and outrageous for 26 purposes of Plaintiffs’ IIED claim. Whether that was actually the case is for the jury to 27 decide. Defendants make no further arguments respecting the remaining elements of this 28 claim. Accordingly, the Court DENIES Defendants’ Motion to Dismiss Plaintiffs’ claim 1 for IIED against the United States. 2 C. Bivens Claim 3 Defendants argue Plaintiffs’ Bivens claim fails because unlike in Bivens, “the FBI 4 agents here were acting pursuant to duly authorized federal warrants, and therefore the 5 ‘legal mandate under which [they were] operating’ was fundamentally different.” Motion 6 at 18 (quoting Annappareddy v. Pascale, 996 F.3d 120, 135 (4th Cir. 2021)). Defendants 7 further contend that the agents were justified in temporarily detaining Plaintiffs because 8 they were executing a valid arrest warrant. Motion at 17–18. Defendants also argue that 9 several factors caution against Plaintiffs’ Bivens claim, including the potential risk to 10 officers and residents during the execution of residential search warrants. Id. at 18. 11 Defendants explain that it would upset the balancing factors Congress considered in 12 allowing FTCA remedies for individuals alleging tortious conduct by federal officers. Id. 13 at 18–19. 14 Plaintiffs argue that like the FTCA claims, the Bivens claim also requires a 15 determination of why the force used was reasonable based on the Supreme Court’s 16 balancing test set forth in Graham. Oppo. at 7. Plaintiffs argue this balancing test “is very 17 fact intensive,” and many cases “have held that the conduct employed by Defendants 18 against the minors in this case was objectively unreasonable.” Id. at 8–10 (citations 19 omitted). Plaintiffs further argue that because there were no weapons or safety concerns 20 implicated in Tuchinsky’s arrest, Defendants’ conduct was not justified. Id. at 10–11. 21 Finally, Plaintiffs argue that whether the arrest warrant was valid is not within the four 22 corners of the FAC and is a disputed question of fact. Id. at 12. Plaintiffs explain that 23 discovery is necessary to determine these issues and identify the agents. Id. Plaintiffs are 24 incorrect. 25 As an initial matter, the United States is immune from Bivens liability under the 26 doctrine of sovereign immunity. Consejo de Desarrollo Economico de Mexicali, A.C. v. 27 United States, 482 F.3d 1157, 1173 (9th Cir. 2007) (citation omitted). Plaintiffs make no 28 counterarguments in their Opposition and as such, the Bivens claim asserted against the 1 United States is DISMISSED. As to the federal agents, Defendants’ Motion to Dismiss 2 requires the Court to evaluate whether Plaintiffs’ Bivens claim can proceed. If the Court 3 determines that the Bivens claim can proceed, it must examine whether Agent Peterson and 4 the thirty Doe Defendants here, are entitled to qualified immunity. Here, the Court finds 5 that Plaintiffs’ Bivens claim cannot proceed. 6 i. Bivens Framework 7 In Bivens, federal agents “entered [Webster Bivens] apartment and arrested him for 8 alleged narcotics violations.” Bivens v. Six Unknown Named Agents of Fed. Bureau of 9 Narcotics, 403 U.S. 388, 389 (1971). “The agents manacled [Bivens] in front of his wife 10 and children, and threatened to arrest the entire family.” Id. After searching the apartment, 11 they took Bivens to the federal courthouse, where he was interrogated, booked, and 12 subjected to a visual strip search. Id. The complaint in Bivens “asserted that the arrest 13 and search were effected without a warrant, and that unreasonable force was employed in 14 making the arrest . . . .” Id. The Supreme Court held that an individual “claiming to be the 15 victim of an unlawful arrest and search could bring a Fourth Amendment claim for 16 damages against the responsible agents even though no federal statute authorized such a 17 claim.” Hernández, 140 S. Ct. 735, 741 (2020) (describing Bivens). 18 The Supreme Court has extended Bivens only twice. First, in Davis v. Passman, to 19 imply a remedy under the Fifth Amendment when a congressman allegedly fired a female 20 staffer on the basis of sex. 442 U.S. 228 (1979). Second, in Carlson v. Green, where 21 prison officials failed to provide proper medical care to the decedent in violation of the 22 Eighth Amendment. 446 U.S. 14 (1980). Since then, the Supreme Court has declined to 23 extend Bivens on twelve separate occasions.4 24 25 4 See Chappell v. Wallace, 462 U.S. 296 (1983); Bush v. Lucas, 462 U.S. 367 (1983); United States v. Stanley, 483 U.S. 669 (1987); Schweiker v. Chilicky, 487 U.S. 412 (1988); 26 FDIC v. Meyer, 510 U.S. 471 (1994); Correctional Services Corp. v. Malesko, 534 U.S. 27 61 (2001); Wilkie v. Robbins, 551 U.S. 537 (2007); Hui v. Castaneda, 559 U.S. 799 (2010); Minneci v. Pollard, 565 U.S. 118 (2012); Ziglar v. Abbasi, 137 S.Ct. 1843 (2017); 28 1 Most recently, in Egbert v. Boule, the Supreme Court held that no Bivens remedy 2 existed, even though the case involved a claim for excessive force under the Fourth 3 Amendment and bore facts akin to Bivens itself. 142 S. Ct. 1793, 1800 (2022). There, 4 Border Patrol Agent Egbert entered Boule’s property, suspecting Boule’s involvement in 5 housing illegal immigrants. Id. at 1801. When Boule asked Egbert to leave his property, 6 Egbert declined and threw Boule into a vehicle and then to the ground. Id. The Supreme 7 Court rejected the Ninth Circuit’s position that a Bivens claim could proceed for two 8 reasons: (1) that interfering with the conduct of border patrol agents has national security 9 implications; and (2) that an alternative remedy existed. Id. at 1804–1808. 10 Egbert also laid out the two-step inquiry required for a Bivens analysis. “First, we 11 ask whether the case presents ‘a new Bivens context’—i.e., is it ‘meaningful[ly]’ different 12 from the three cases in which the Court has implied a damages action[?]” Egbert, 142 S. 13 Ct. 1793 at 1803 (citing Abbasi, 137 S. Ct. at 1859–60). “Second, if a claim arises in a 14 new context, a Bivens remedy is unavailable if there are ‘special factors’ indicating that the 15 Judiciary is at least arguably less equipped than Congress to ‘weigh the costs and benefits 16 of allowing a damages action to proceed.’” Egbert, 142 S. Ct. at 1803 (quoting Abbasi, 17 137 S. Ct. at 1858). “If there is even a single ‘reason to pause before applying Bivens in a 18 new context,’ a court may not recognize a Bivens remedy.” Egbert, 142 S. Ct. at 1803 19 (quoting Hernández, 140 S. Ct. at 743). 20 Although the two-step inquiry appears seemingly straightforward, the Supreme 21 Court added that “[w]hile our cases describe two steps, those steps often resolve to a single 22 question: whether there is any reason to think that Congress might be better equipped to 23 create a damages remedy.” Egbert, 142 S. Ct. at 1803. The Supreme Court then cited 24 Abbasi as an example, noting how there, the Court explained that “a new context arises 25 when there are ‘potential special factors that previous Bivens cases did not consider.”’ Id. 26 at 1803 (quoting Abassi, 137 S.Ct. at 1860). As a result, even if the Bivens claim does not 27 appear to create a new context on its face, certain special factors should be considered 28 before moving to the second step. 1 Although the Supreme Court has yet to overturn Bivens, it has made clear “that 2 recognizing a cause of action under Bivens is a ‘disfavored judicial activity.’” Egbert, 142 3 S. Ct. at 1803 (quoting Abbasi, 137 S. Ct. at 1843); see also Hernández, 140 S. Ct. at 742– 4 743. In Abbasi, the Court went so far as to say that “in light of the changes to the Court’s 5 general approach to recognizing implied damages remedies, it is possible that the analysis 6 in the Court’s three Bivens cases might have been different if they were decided today.” 7 137 S. Ct. at 1856. With this backdrop, the Court proceeds to the “new context” analysis. 8 ii. New Context 9 A “new context” is one in which the case is “different in a meaningful way from 10 previous Bivens cases decided by the [Supreme Court].” Abbasi, 137 S. Ct. at 1859 11 (emphasis added). In Abbasi, the Supreme Court explained that: 12 A case might differ in a meaningful way because of the rank of the officers 13 involved; the constitutional right at issue; the generality or specificity of the 14 official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other 15 legal mandate under which the officer was operating; the risk of disruptive 16 intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not 17 consider. 18 19 Id. at 1860. 20 Defendants’ primary argument is that this case creates a “new context” under Bivens 21 because here, the FBI agents were acting pursuant to warrants, whereas in Bivens, the arrest 22 was warrantless. In their briefing, the parties dispute whether the warrants were valid, with 23 Defendants asserting validity and Plaintiffs arguing invalidity. However, the Court is 24 confined to the four corners of the FAC, which does not categorize the warrants as valid or 25 invalid. Given the FAC’s silence on the issue, whether or not the warrants are valid remains 26 a disputed fact. Even so, the FAC does mention the warrants and as such, the Court can 27 reasonably infer that the FBI agents were conducting Tuchinsky’s arrest and the search of 28 the premises pursuant to such. Here, the allegations supporting Plaintiffs’ Bivens claim are 1 that the FBI agents employed unreasonable force when executing an arrest warrant for 2 Tuchinsky and search warrant for Plaintiffs’ home. Whether the existence of a warrant 3 (even if executed unreasonably) presents a “new context” for a Bivens claim has not been 4 expressly decided by the Supreme Court. 5 In Ioanes v. Hodges, the Ninth Circuit found no “new context” where the Internal 6 Revenue Service’s (“IRS”) Criminal Investigation Division conducted a search of the 7 plaintiff’s home and person. 939 F.3d 945, 949 (2018). There, the plaintiff’s husband was 8 being investigated for criminal tax fraud and the IRS was acting pursuant to a search 9 warrant for the couple’s residence. Id. At issue on appeal with respect to Bivens, was 10 plaintiff’s claim for invasion of bodily privacy. Id. The agent did not give the plaintiff 11 privacy while using the bathroom (as another agent did with the husband) and made the 12 plaintiff hold up her dress while she was relieving herself. Id. at 950. The Ninth Circuit 13 found this situation akin to the warrantless strip search of Webster Bivens. See id. at 952. 14 In discussing the legal mandate under which the officers were operating, the Ninth Circuit 15 stated in a footnote: 16 The fact that Agent Noll searched the Ioane residence pursuant to a lawful 17 search warrant, unlike in Bivens where the agents were wholly without any 18 warrant, is of no significance. The only Fourth Amendment claim at issue here is Shelly’s. With respect to Shelly, Agent Noll conducted a warrantless search 19 of her person. 20 21 Id. Likewise, the Bivens claim at issue here are those of Plaintiffs and not of Tuchinsky 22 (i.e., the individual named in the arrest warrant). Based on the allegations in the FAC, the 23 warrant5 was based on Tuchinsky’s alleged criminal activities. As such, the same 24 reasoning in Ioane applies here, because the arrest and search warrants did not involve 25 26 27 5 The Court also notes that although there was a search warrant for Plaintiffs’ residence, the FAC does not allege the confines of that warrant for the Court’s 28 1 Plaintiffs and although they resided in the home being searched, the search was allegedly 2 executed in an unreasonable manner. 3 Defendants rely on Annappareddy v. Pascale, where the Fourth Circuit distinguished 4 an unreasonable warrantless search from a search conducted with a warrant. 996 F.3d 120 5 (4th Cir. 2021). There, the Bivens claim relied on allegations that a falsified affidavit was 6 submitted to obtain the search warrant, and that evidence was fabricated to support the 7 arrest warrant. Id. at 135–36. The Fourth Circuit distinguished the case from Bivens by 8 explaining that “[s]peaking ‘to witnesses, draft[ing] reports, and shar[ing] information with 9 prosecutors and other investigators’ are ‘information-gathering and case-building 10 activities’ that represent ‘a different part of police work than the apprehension, detention, 11 and physical searches at issue in Bivens.’” Id. at 136 (quoting Farah v. Weyker, 926 F.3d 12 492, 499 (8th Cir. 2019)). The Fifth Circuit set forth a similar holding in Cantu v. Moody, 13 where the allegations involved falsified affidavits supporting a warrant. 933 F.3d 414, 423 14 (5th Cir. 2019). In Greenpoint Tactical, the Bivens claim at issue also alleged that false 15 statements were made in the affidavit supporting the search warrant. 38 F.4th 555, 564 16 (7th Cir. 2022). There, the Seventh Circuit cast doubt on Annappareddy and Cantu, 17 explaining how in the Supreme Court’s decision in Hernández, which distinguished 18 Bivens, the focus was not “on the absence of a search warrant in Bivens” and instead, 19 “framed the issue in terms of an unconstitutional arrest and search in the United States, 20 without trying to distinguish among various scenarios involving warrants or different 21 grounds for warrantless searches or seizures.” Greenpoint Tactical, 38 F.4th at 564; see 22 also Hernández, 140 S. Ct. at 743–44. 23 This Court agrees that falsifying information or evidence to obtain a warrant appears 24 to create a new context for a Bivens claim, because information gathering is different police 25 activity than executing a search. However, the Court also agrees with Greenpoint 26 Tactical’s observation that the absence of a warrant has not historically barred a Bivens 27 claim, and that the Hernández decision focused on the unconstitutional arrest. This 28 position is also consistent with Ninth Circuit’s holding in Ioane v. Hodges. 1 With or without a warrant, a federal agent must conduct a search in a reasonable 2 manner as set forth in the Fourth Amendment. However, “[w]hen officers obtain a warrant 3 to search an individual’s home, they also receive certain limited rights to occupy and 4 control the property . . . .” San Jose Charter of Hells Angels Motorcycle Club, 402 F.3d at 5 971 (quoting Lawmaster, 125 F.3d at 1349). This limited degree of control supports 6 Defendants’ argument that federal agents were acting under a different legal mandate than 7 the agents in Bivens. In addition, most recently, the Supreme Court in Egbert “held that 8 ‘similar allegations of excessive force,’ ‘almost parallel circumstances,’ or a ‘similar 9 ‘mechanism of injury’ as Bivens ‘are not enough to support the judicial creation of a cause 10 of action.’” Mejia v. Miller, 53 F.4th 501, 505 (9th Cir. 2022) (quoting Egbert, 142 S. Ct. 11 at 1805.). Because the federal agents in Bivens and here were both bound by the Fourth 12 Amendment’s protection against unreasonable search and seizure, the arguable extension 13 of Bivens is modest at best.6 But the Supreme Court has held that “even a modest extension 14 is still an extension.” Abbasi, 137 S. Ct. at 1864. 15 This case presents a gray area7 for the Court but given the repeated narrowing of 16 Bivens claims and the holdings in Egbert and Abbasi, the Court is inclined to agree with 17 Defendants that the FBI agents here were acting, at least to some extent, under a different 18

19 6 The Court also notes there may be other factors that distinguish this case from Bivens 20 but again, only addresses those arguments set forth in Defendants’ Motion to Dismiss. 21 7 The Court finds that several arguments also favor Plaintiffs. Although the warrants are relevant to the arrest and search of Plaintiffs’ home, the alleged Fourth Amendment 22 violations do not arise from the warrants. Had the warrants been executed in a reasonable 23 manner, the claims alleged in the FAC would fail. Instead, Plaintiffs are alleging that the agents employed excessive force in making Tuchinsky’s arrest and searching the home in 24 violation of the Fourth Amendment’s protections against unreasonable searches and 25 seizures. But for the unreasonable force, there would be no claims. Defendants argue that because the agents were acting pursuant to a warrant, the legal mandate under which they 26 were operating was fundamentally different. However, a search warrant alone does not 27 justify an unreasonable use of force during the performance of said search. Even so, given the Supreme Court’s findings in Egbert and Abbasi, the Court concludes that a slight 28 1 legal mandate than the narcotics agents in Bivens. Accordingly, the Court finds that this 2 case presents a “new context” for a Bivens claim and proceeds to the special factors argued 3 by Defendants. 4 iii. Alternative Remedy 5 Defendants argue that allowing this Bivens remedy to proceed “would upset the 6 balancing factors that Congress has considered in providing a remedy through the FTCA 7 for individuals allegedly subjected to the tortious conduct of federal law enforcement 8 officers.” Motion at 18–19. The argument has merit. 9 In Carlson, the Supreme Court compared a Bivens remedy to that of the FTCA, 10 holding that the FTCA is “much less effective than a Bivens action as a deterrent to 11 unconstitutional acts,” because a Bivens claim, unlike FTCA claims, can be brought against 12 the individual agent. 446 U.S. at 21–22. The Court also held that Congress did not attempt 13 to preempt Bivens and instead, “views FTCA and Bivens as parallel, complementary causes 14 of action.” Id. at 19–20. The Supreme Court further noted the lack of an option for a jury 15 trial and punitive damages under the FTCA, as well as the lack of uniform rules for FTCA 16 claims seeing that tort violations are governed by state law. Id. at 22–23. If Carlson alone 17 dictated this Court’s decision, the FTCA would not serve as a sufficient alternative remedy. 18 However, Plaintiffs’ Bivens claim must satisfy “the prevailing ‘analytic framework’ 19 prescribed by the last four decades of intervening case law.” Egbert, 142 S. Ct. at 1809 20 (citing Abbasi, 137 S. Ct. at 1859). 21 Egbert avoided addressing the issue head on. Instead of focusing on the plaintiff’s 22 FTCA remedies, the Supreme Court focused on the plaintiff’s use of Border Patrol’s 23 administrative grievance process. And although Carlson has not been explicitly overruled, 24 the Supreme Court’s subsequent decisions have discarded as irrelevant several aspects of 25 Carlson’s FTCA analysis. In Schweiker v. Chilicky, the Court held that even the absence 26 of a statutory remedy does not necessarily mean that courts should imply a Bivens action 27 for monetary damages. 487 U.S. at 421–22. In Bush v. Lucas, the Supreme Court found 28 remedial measures sufficient even though they “were not as effective as an individual 1 damages remedy and did not fully compensate [the plaintiff] for the harm he suffered.” 2 462 U.S. at 372–73, 385–86. Both of these holdings minimize the Supreme Court’s 3 analysis in Carlson comparing the effectiveness of an FTCA remedy to that of Bivens. In 4 addition, the Supreme Court in Malesko viewed state law tort remedies as sufficient 5 alternative relief. 534 U.S. at 73. The Malesko holding negates Carlson’s concern over 6 the FTCA’s varying state laws and lack of uniform federal relief. 7 The Supreme Court, however, has not explicitly overruled its previous findings of 8 Congressional intent with respect to an FTCA remedy in the context of Bivens. For 9 example, despite Malesko’s conclusion regarding state law tort remedies, the decision also 10 reiterated certain findings in Carlson, stating: “We also found it ‘crystal clear’ that 11 Congress intended the FTCA and Bivens to serve as ‘parallel’ and ‘complementary’ 12 sources of liability.” 534 U.S. at 68 (citing Carlson, 446 U.S. at 19–20). Justice 13 Sotomayor, concurring in judgment, further noted that the majority in Egbert did not accept 14 Agent Egbert’s argument that the FTCA served as an alternative remedy. Egbert, 142 S. 15 Ct. 1793 at 1822 n.7 (J. Sotomayor concurring in part). The concurrence cited the history 16 of the Supreme Court’s findings that Congress intended the FTCA to serve as a parallel 17 remedy to Bivens. Even so, in Hernández, the Supreme Court noted: 18 The [FTCA] also permits claims “brought for a violation of the Constitution.” 19 28 U.S.C. § 2679(b)(2)(A). By enacting this provision, Congress made clear 20 that it was not attempting to abrogate Bivens, but the provision certainly does not suggest, as one of petitioners’ amici contends, that Congress “intended for 21 a robust enforcement of Bivens remedies.” Instead, the provision simply 22 left Bivens where it found it. It is not a license to create a new Bivens remedy in a context we have never before addressed . . . . 23

24 140 S. Ct. at 748 n.9 (citations omitted). Based on the language in Hernández, the Supreme 25 Court does not view the FTCA as a basis for courts to extend Bivens in a new context. 26 Here, the FTCA claims are permitted against the United States only because they are 27 alleged as intentional torts committed by federal agents “empowered by law to execute 28 1 searches, to seize evidence, or to make arrests for violations of federal law.” See 28 U.S.C. 2 § 2780(h). Given the Supreme Court’s continual narrowing of Bivens remedies in a new 3 context, however, an analysis of this distinction appears futile. See Egbert, 142 S. Ct. at 4 1810 (“Sometimes, it seems, this Court leaves a door ajar and holds out the possibility that 5 someone, someday might walk through it even as it devises a rule that ensures no one ... 6 ever will.”) (J. Gorsuch concurring in judgment) (internal quotation marks and citations 7 omitted). After all, the alternative remedy need not be as effective as a Bivens remedy, nor 8 are remedies even required to exist. 9 Because the existence of a warrant in this case provides a modest extension of 10 Bivens, the alternative remedy available through the FTCA constitutes a special factor that 11 forecloses Plaintiffs’ Bivens claim. See Egbert, 142 S. Ct. at 1804 (quoting Abbasi, 137 S. 12 Ct. at 1858) (“If there are alternative remedial structures in place, ‘that alone,’ like any 13 special factor, is reason enough to ‘limit the power of the Judiciary to infer a 14 new Bivens cause of action.’”). Based on the language in Hernández, this Court cannot 15 base an extension of Bivens on the FTCA’s remedial shortcomings. This conclusion is 16 further supported by recent Ninth Circuit precedent in Mejia, where the Court refused to 17 extend Bivens and held that while the “FTCA claims are based on a different legal theory, 18 in Mejia’s instance they are an alternative avenue to seek damages for the injuries alleged 19 in her Bivens claim.” 53 F.4th at 506–07. 20 There is a long and complicated history of Supreme Court decisions limiting 21 extensions of Bivens, and that history includes varying interpretations of the FTCA and 22 other alternative remedies. As stated in Egbert, “[i]f there is even a single ‘reason to pause 23 before applying Bivens in a new context,’ a court may not recognize a Bivens remedy.” 24 Egbert, 142 S. Ct. at 1803 (quoting Hernández, 140 S. Ct. at 743). Given that an alternative 25 remedy exists in some form—along with the Supreme Court’s subsequent limitations of 26 Carlson’s FTCA analysis—there are reasons to pause. Without further Supreme Court 27 guidance, this Court cannot say that the case at hand presents the rare exception that would 28 allow a Bivens extension. See Mejia, 53 F.4th at 506 (citing Egbert, 142 S. Ct. at 1802) 1 ||(‘Under Egbert, rarely if ever is the Judiciary equally suited as Congress to 2 ||extend Bivens even modestly. The creation of a new cause of action is inherently 3 || legislative, not adjudicative.”). Accordingly, the Court GRANTS Defendants’ Motion to 4 Dismiss Plaintiffs’ Bivens claim. Because the Bivens claim is dismissed, the Court 5 ||DENIES as moot Defendants’ Motion to Dismiss the claim on qualified immunity 6 || grounds. CONCLUSION 8 The Court rules on Defendants’ Motion to Dismiss as follows: 9 1. The Court GRANTS Defendants’ Motion to Dismiss Plaintiffs’ FTCA claims 10 |/against Agent Peterson and Doe Defendants. 11 2. The Court DENIES Defendants’ Motion to Dismiss Plaintiffs’ FTCA claims 12 || for assault against the United States. 13 3. The Court DENIES Defendants’ Motion to Dismiss Plaintiffs’ FTCA claims 14 || for battery against the United States. 15 4. The Court DENIES Defendants’ Motion to Dismiss Plaintiffs’ FTCA claims 16 || for false imprisonment against the United States. 17 5. The Court DENIES Defendants’ Motion to Dismiss Plaintiffs’ FTCA claims 18 || for ITED against the United States. 19 6. The Court GRANTS Defendants’ Motion to Dismiss Plaintiffs’ Fourth 20 || Amendment Bivens claim against all Defendants. 21 7. The Court DENIES as moot Defendants’ Motion to Dismiss Plaintiffs’ Bivens 22 ||claim against Agent Peterson and Doe Defendants based on qualified immunity. 23 IT IS SO ORDERED. : 24 |} DATED: March 10, 2023 25 “ROGER T. BENIT United States District Judge 26 27 28 -26-