United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued April 4, 2023 Decided June 23, 2023 No. 22-5133 RADIYA BUCHANAN, ET AL., APPELLANTS v. WILLIAM P. BARR, IN HIS INDIVIDUAL CAPACITY AS FORMER U.S. ATTORNEY GENERAL, ET AL., APPELLEES Consolidated with 22-5139 Appeals from the United States District Court for the District of Columbia (No. 1:20-cv-01542) (No. 1:20-cv-01469) Scott Michelman and Lee R. Crain argued the causes for appellants. With them on the briefs were Anne Champion, Arthur B. Spitzer, Dennis Corkery, Jonathan M. Smith, Jon 2 Greenbaum, Arthur Ago, David Brody, John A. Freeman, and David E. Kouba. Scott F. Regan and Victoria Clark were on the brief for amici curiae Institute for Justice and Foundation for Individual Rights and Expression in support of appellants. Gabriel K. Gillett, Ishan K. Bhabha, and Lauren J. Hartz were on the brief for amici curiae Bipartisan Former Members of Congress in support of appellants. Sarah Helene Duggin, Donald Crane, Kwaku A. Akowuah, Tobias S. Loss-Eaton, and Lakeisha F. Mays were on the brief for amici curiae Clergy and Religious Institutions in support of appellants. Brian J. Springer, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, and Mark B. Stern, Attorney. Christopher A. Zampogna was on the brief for appellee Sean Kellenberger. Before: WILKINS and WALKER, Circuit Judges, and SENTELLE, Senior Circuit Judge. Opinion for the Court filed by Senior Circuit Judge SENTELLE. Concurring opinion filed by Circuit Judge WILKINS. Concurring opinion filed by Circuit Judge WALKER. 3 SENTELLE, Senior Circuit Judge: Appellants, individual protestors and Black Lives Matter D.C., brought these consolidated actions against federal law enforcement officers, alleging that officers’ actions in clearing protestors from Lafayette Park in June 2020 violated their First, Fourth, and Fifth Amendment rights and seeking damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Appellees, former Attorney General Barr and various named U.S. Park Police officers, moved to dismiss the claims, arguing that a Bivens remedy is unavailable in this context. The district court granted the motions, and this appeal followed. Applying Supreme Court precedent, we hold that Appellants’ claims arise in a new context and that special factors counsel hesitation against extending the availability of Bivens claims to that context. Accordingly, we affirm. I. Background We review the district court’s dismissal of Appellants’ claims de novo and accept as true all well-pleaded factual allegations. Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). Following the killings of George Floyd and Breonna Taylor, protestors, including Appellants, gathered in Lafayette Square across from the White House in Washington, D.C., to protest racism and police brutality. On the evening of June 1, 2020, at the order of Attorney General Barr, federal law enforcement officers began clearing protestors from the park using physical force, chemical irritants, and munitions. Officers fired tear gas, rubber bullets, flash grenades, and …
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