THE ESTATE OF JAMES D. REDD, M.D., by and through Jeanne H. Redd, the personal representative for and on behalf of Plaintiffs Decedent James D. Redd, and his heirs as an individual in a survivorship action and in a wrongful death action, Plaintiff - Appellant,
DANIEL LOVE, Bureau of Land Management Special Agent, in his individual capacity, Defendant-Appellee,
from the United States District Court for the District of
Utah (D.C. No. 2:11-CV-00478-RJS)
Shandor S. Badaruddin, (Edward P. Moriarity, with counsel on
the briefs), Moriarity & Badaruddin, Missoula, Montana,
K. Smith, Trial Attorney (Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, Mark B. Stern and Sonia K.
McNeil, Attorneys, with counsel on the brief), United States
Department of Justice, Washington, D.C., for
BRISCOE, MURPHY, and PHILLIPS, Circuit Judges.
PHILLIPS, Circuit Judge.
2009, as part of a federal law-enforcement investigation
known as "Operation Cerberus, " FBI and Bureau of
Land Management ("BLM") agents arrested
twenty-three people and searched twelve properties in and
near three Utah cities-Blanding, Monticello, and Moab. The
operation targeted persons possessing and trafficking in
Native American artifacts illegally taken from the Four
Corners region of the United States. One day after agents
searched Dr. James D. Redd's home, arrested him as part
of this operation, and released him on bond, Dr. Redd
Redd's Estate ("the Estate") sued sixteen named
FBI and BLM agents and twenty-one unnamed agents under
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), claiming that the agents
had violated Dr. Redd's Fourth, Fifth, Sixth, Eighth, and
Fourteenth Amendment rights. The district court granted the
Defendants' motions to dismiss all of the Estate's
claims except one-a Fourth Amendment excessive-force claim
against the lead BLM agent, Daniel Love. Later, on
qualified-immunity grounds, the district court granted Agent
Love summary judgment on that final claim. The Estate appeals
the district court's dismissal of the excessive-force
claim. We affirm.
with the problem of people illegally taking and trafficking
Native American artifacts from federal lands, BLM agents and
FBI agents jointly investigated these crimes occurring in
southern Utah and the Four Corners region. As part of their
investigation, the two agencies arranged controlled sales of
illegally taken artifacts. Agent Love served as the lead BLM
agent for the operation. After presenting a judicial officer
an affidavit about these undercover transactions, the agents
obtained many search and arrest warrants, including warrants
to arrest Dr. and Mrs. Redd and to search their
10, 2009, twelve teams of BLM and FBI agents simultaneously
executed search warrants at different locations in and near
Blanding, Monticello, and Moab, Utah. Each team assigned to
the scattered search locations comprised between eight and
twenty-one federal agents and at least one cultural
specialist. Upon completing their assigned searches, agents
reported to other search locations to help as needed.
members were concerned for their safety because some local
citizens had previously acted hostilely toward federal
officials. Partly for that reason, each team had an
operations plan identifying its target location and any
expected obstacles. FBI and BLM policy required agents to
wear soft body armor and to carry a firearm when executing
warrants or when confronting potentially dangerous
situations. For a high-risk search at one house, the
FBI's Salt Lake City SWAT team furnished ten members to
assist in executing that search warrant.
on evidence seized during the searches, the agents arrested
twenty-three people for allegedly possessing or trafficking
stolen Native American artifacts. Sixteen of the arrestees,
including Dr. and Mrs. Redd, resided in Blanding, Utah.
Search and Arrest Warrants for the Redds
operations plan for the team assigned to search the
Redds' house advised that three adults and one child
lived there-Dr. and Mrs. Redd, their adult daughter Jericca
Redd, and her minor son. The plan further advised that the
Redds' house stood on elevated terrain, making its
one-eighth-of-a-mile-long driveway visible from the house.
Before arriving, the agents didn't know whether the Redds
owned guns, or whether anything prevented entry onto the
property or barricaded the house.
arriving, the agents knocked on the front door. When Mrs.
Redd answered, agents arrested her without incident and took
her to the kitchen. Agents took Jericca Redd to the piano
room upstairs. Dr. Redd wasn't then at the house, but
agents arrested him when he arrived home at 6:55 a.m. Dr. and
Mrs. Redd waived their Miranda rights and spoke with
the agents, at least intermittently, until no later than
10:34 a.m., when the agents drove the Redds to Monticello,
Utah for booking.Jericca Redd drove her parents back to
their house after their initial court appearances in Moab,
Utah. When the Redds arrived home at about 5:00 p.m., agents
were still searching the house, so the Redds waited outside
for them to finish. By about 5:30 p.m., the agents had
completed their search, and the Redds reentered their house.
The next day, Dr. Redd committed suicide.
Number of Agents
parties disagree about how many agents were on the Redds'
property during the search and arrests. An official list of
search locations and agents ("Search Warrant Locations
List") shows that those directing the entire operation
apportioned 130 agents among the twelve locations. Each
search location had between eight and twenty-one agents. The
Search Warrant Locations List shows that at least one
"cultural specialist" was also assigned to each
search location. R. vol. 7 at 784-85. A list of command
agents and their locations ("Command Locations
List") identifies twenty command agents unassigned to
any particular location. These command agents moved between
search warrant locations and command-post locations as
Search Warrant Locations List shows that those directing the
operation assigned twelve agents to the Redds' house.
Upon arriving at and departing from the Redds' house, all
agents were required to sign a log identifying their arrival
and departure times. This sign-in log reveals that twelve
agents and one cultural specialist were present when Dr. Redd
arrived home at 6:55 a.m. When Dr. Redd arrived, some of
these agents were already inside the house with Mrs. Redd and
Jericca Redd, so Dr. Redd initially encountered fewer than
twelve agents. Two agents met Dr. Redd at the end of the
driveway and escorted him to the garage, and two other agents
joined them in questioning Dr. Redd inside the garage. Beyond
this, the record provides no help in determining how many
agents Dr. Redd saw that morning.
Estate agrees that the initial team comprised no more than
twelve BLM and FBI agents and one cultural specialist. It
also agrees that a team this size was lawful. But the Estate
contends that over the course of the hours-long search of the
Redds' house, as many as sixty-nine agents arrived there.
In support, it relies on a simple but problematic
it contends that 150 agents participated in the searches,
pointing to an FBI press release saying that "[t]he law
enforcement operation was conducted on June 10, 2009 by
approximately 150 agents and employees from the FBI and the
BLM." R. vol. 17 at 1237. Second, it subtracts from this
figure 91 agents-those identified by Agent Love as searching
at locations other than the Redds' house. From this, the
Estate argues that it is "reasonable to infer that one
or more, and likely more, of the remaining sixty-nine agents
(150 minus 91) were at the Redd Home."Appellant's
Opening Br. at 25. But Agent Love's list of agents
searching the eleven locations besides the Redds' house
in southern Utah that day totals 122 agents and
employees (not 91 as the Estate says). This means
that at most, twenty-eight agents were not listed at a
specific search location.
additional support to show a large number of agents on the
Redds' property, the Estate relies on the Declaration of
Jericca Redd, who says she saw "as many as 50 agents at
any one time, " not specifying where or when she saw
them, instead saying only that they had been
"everywhere." R. vol. 17 at 1241, 1243. Perhaps to
help confirm her estimate, Jericca Redd also recounts that
she heard Agent Love call other agents on a telephone to come
assist in searching the Redds' house. But she also says
she left the house "sometime after 12:00 pm" to
pick up her parents from their court appearance in Moab.
Id. at 1244. So she was able to see
agents who arrived at the Redds' house after her parents
had left for booking in Monticello.
Love disputes the Estate's calculations. He testified
that no more than twenty-two agents were at the Redds'
house while Dr. Redd was there between 6:55 a.m. and 10:34
He also testified that some agents came to the Redds'
house after completing their assigned searches to help
identify and catalog the unexpectedly high number of
artifacts found at the Redds' house. To support his
count, Agent Love relied on the sign-in log at the Redds'
house. Twenty-two agents signed the log before
agents took Dr. Redd and Mrs. Redd to Monticello for booking.
Among these ...