CA10: USDA officers committing a break-in without exigency to conduct an inspection violated 4A

USDA inspectors breaking into plaintiff’s wildlife preserve to check on animals that the previous day the preserve said would go to the veterinarian the next day stated a Fourth Amendment claim under Bivens. At the time of the entry, the animals were at the vet. There was no qualified immunity because any reasonable officer would know that breaking in was unjustified without exigency, if at all. Plaintiff’s cause of action under § 1983, however, fails for lack of state action by federal employees. Big Cats of Serenity Springs v. Rhodes, 2016 U.S. App. LEXIS 21988 (10th Cir. Dec. 12, 2016):

Big Cats of Serenity Springs is a Colorado-based non-profit that provides housing, food, and veterinary care for exotic animals. The facility is regulated by the United States Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS), established pursuant to the Animal Welfare Act. Three APHIS inspectors accompanied by El Paso County sheriff’s deputies broke into the Big Cats facility without its permission to perform an unannounced inspection of two tiger cubs. But at the time the inspectors entered the facility, the cubs were at a veterinarian’s office receiving treatment, just as Big Cats had promised the APHIS inspectors the previous day.

Big Cats and its directors sued the APHIS inspectors for the unauthorized entry pursuant to Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971) and 42 U.S.C. § 1983, asserting the entry was an illegal search under the Fourth Amendment. The district court denied the APHIS inspectors’ motion to dismiss the complaint and they filed an interlocutory appeal challenging the court’s failure to grant qualified immunity. This court has jurisdiction over the interlocutory appeal from the district court’s order under 28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S. 511, 535 (1985). Additionally, the court has jurisdiction over the question of whether a Bivens remedy exists because it was sufficiently implicated by the qualified immunity defense. See Wilkie v. Robbins, 551 U.S. 537, 549 n.4 (2007).

We affirm in part and reverse in part. Big Cats’ complaint has stated a claim for relief under Bivens. No APHIS inspector would reasonably have believed unauthorized forcible entry of the Big Cats facility was permissible, and therefore Big Cats and its directors may have a claim for violation of their Fourth Amendment right to be free from an unreasonable search. But we reverse on Big Cats’ civil rights claim because the federal inspectors are not liable under § 1983 in the circumstances here.