CA6 is offended by execution of a judgment in a home but has to find qualified immunity anyway

Bivens action against judgment creditor and U.S. Marshal in execution of judgment fails on qualified immunity, but it’s not for want of trying: “If the facts alleged in the complaint are true, this case involves an incident that is more like home raids by Red Guards during China’s Cultural Revolution than like what we should expect in the United States of America.” Bray v. Planned Parenthood Columbia-Willamette, 746 F.3d 229 (6th Cir. 2014):

If the facts alleged in the complaint are true, this case involves an incident that is more like home raids by Red Guards during China’s Cultural Revolution than like what we should expect in the United States of America. A surprise raid was made on a judgment debtor’s home to enforce an order of execution on property of the debtor. The order was ostensibly for the purpose of obtaining property of value to be seized, but was obviously focused instead on all means for the debtor to express ideas. The debtor was required to sit on his couch while flak-jacketed U.S. Marshals, along with agents of advocates for moral and political positions that the debtor despised, plus persons with unknown identities and purposes, went through and seized the books and papers, and computers and cameras, of the debtor and his family. The only exception was for children’s books and Bibles. The interior of the home was videotaped. The debtor was not allowed to leave the couch, to go outside, or to call his lawyer, although eventually a marshal called the debtor’s lawyer.

This kind of home attack on the ability to convey ideas should not happen in our Republic. It is true that the debtor’s ideas—that it is moral to take violent, illegal action to stop abortions—are repugnant. But it is contrary to our fundamental norms to permit government-sanctioned attacks on the purveyance of ideas, even when those ideas are repugnant.

Three considerations nonetheless require us to affirm the district court’s dismissal of the debtor’s Bivens action against Riley and Kimmet, the two U.S. Marshals involved. First, notwithstanding the highly questionable way in which the court’s order of execution was apparently aimed to stifle the debtor’s ability to express ideas, the debtor-plaintiff in this case has not challenged the validity or scope of the judge’s order. Second, the debtor-plaintiff has settled with all of the participants in the raid other than Riley and Kimmet, so that we are faced in this case solely with the actions of marshals carrying out a presumptively valid order of a federal judge. Third, although some of the actions allegedly carried out by the marshals and not explicitly authorized by the order were not constitutional, that unconstitutionality was not then clearly established with sufficient specificity. Riley and Kimmet are therefore entitled to qualified immunity from suit.

Plaintiffs Michael and Jayne Bray, individually and on behalf of their minor children, along with their adult children Epiphany Bray, Beseda Bray, and Perseverance Bray, brought this action under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). They allege that Deputy U.S. Marshals Chris Riley and Joel Kimmet conspired with Planned Parenthood Columbia Willamette, Inc. (“PPCW”) to seize their personal property in an unconstitutional manner, ostensibly to satisfy an $850,000 judgment that PPCW had obtained against Michael Bray following the publication of his book, A Time to Kill.

Bray is an antiabortion activist with views that his complaint describes as “unpopular.” First Amended Compl. 5. He expressed these views in A Time to Kill, “defend[ing] as a moral and ethical proposition the use of force to defend innocent human beings, born and unborn.” Id. ¶ 4.3. In 1985, Bray was convicted in Maryland for a felony “relating to physical damage inflicted on several abortion centers.” Id. ¶ 4.2. As a result, he spent four years in prison. Id. Despite his felony conviction and the provocative title and subject matter of his book, Bray says that he “has never advocated or encouraged anyone to kill or physically attack abortionists, nor to inflict damage on facilities where abortionists ply their trade.” Id. ¶ 4.3.