This Week At The Ninth: Bivens And Montana Insurance Law

• Jurisdiction: United States,Federal
• Law Firm: Morrison & Foerster LLP
• Subject Matter: Insurance, Litigation, Mediation & Arbitration, Insurance Laws and Products, Trials & Appeals & Compensation
• Author: Alexandra Avvocato and Joel F. Wacks
• Published date: 06 February 2023

This week, the Court addresses the availability of a Bivens cause of action against federal officials and certifies two insurance law questions to the Montana Supreme Court.

MARK PETTIBONE ET AL. V. GABRIEL RUSSELL ET AL.

The Court holds that a Bivens cause of action is not available for protestors alleging that a federal agent ordered or acquiesced in subordinates' unlawful arrests and uses of excessive force.

The panel: Judges McKeown, Miller, and Mendoza, with Judge Miller writing the opinion.

Key highlight: "Although the Supreme Court has not overruled Bivens, Davis, and Carlson, it has recognized that they are in tension with the Court's general approach to recognizing implied damages remedies, and that the analysis in the Court's three Bivens cases might have been different if they were decided today . . . the Court has made clear that expanding the Bivens remedy is now a disfavored judicial activity, one that places great stress on the separation of powers. Thus, if there is any reason to think that Congress might be better equipped to create a damages remedy for a constitutional violation, we must refrain from recognizing one." (Internal quotation marks and citations omitted.)

Background: The summer of 2020 saw a wave of protests across the United States in response to the murder of George Floyd. The former President issued an executive order attributing these protests to "[a]narchists and left-wing extremists [who] have sought to advance a fringe ideology that paints the United States of America as fundamentally unjust and have sought to impose that ideology on Americans through violence and mob intimidation." The order directed the deployment of personnel to protect federal monuments, memorials, statues, and property. Over 100 officers from federal agencies were deployed to Portland, Oregon; those officers were overseen by defendant Gabriel Russell.

Several individuals who protested in Portland, including Mark Pettibone, allege that those officers arrested protesters "without any lawful basis" and "used violent tactics on lawful protesters," including shooting them with impact munitions and pepper balls; spraying them with pepper spray and tear gas; and beating them with batons. Pettibone alleges that these tactics were excessive given the officers' limited mission of protecting property and reflected a policy "designed to retaliate against and to deter the protesters because of their views and beliefs."

Pettibone brought a Fourth Amendment...