8 Trial Lawyer • Summer 2023 When Nothing Works Continued from p 7 litigation. They were too high in the chain of command according to the court. That dismissal was appealed. The motion to compel sought the names of patrol-level officers who used force, the method and manner they used force, whether the officers prepared a use of force report and the legal basis for the use of force. The plaintiff sought a service address for the patrol officer and their supervisors. This information was necessary to make a good faith determination of which patrol level officers should be named and to complete service of a summons and complaint. The government responded saying the requested discovery was not authorized since each officer would be entitled to qualified immunity and such discovery was pointless. The government wanted it all to be secret so they could win a motion for summary judgment without handing over any discovery. Anyone can win if they cheat. On February 3, 2022, over a year after the case was filed, Judge Immergut issued an order dismissing Bivens claims against named supervisory defendants claiming Bivens did not extend to supervisory personnel in contrast to well- established law. This opinion conflicted with an opposite finding by Judge Simon that Judge Immergut deemed irrelevant claiming she conducted her “own analysis” of the relevant conduct. The relevant conduct in the Pettibone case was identical to that alleged in the Clark matter. No discovery, other than the names of the involved officers, had been provided. The plaintiff still did not know who to sue. On June 8, 2022 the Supreme Court issued an opinion in Egbert v. Boule severely limiting the scope of Bivens actions against federal agents for Constitutional violations. This opinion made a Bivens action against any of the 700 federal agents in Clark a difficult task. The team decided to dismiss the Bivens action and finalize filing federal tort claim notices for the Clark class and several individual plaintiffs who were severely injured by federal officers in July 2022. The majority of the two years spent litigating the Clark case involved trying to find the identities of the individual officers who were deployed in the response to the protest. The plaintiff sought repeatedly to determine who fired the tear gas and who ordered it, who fired “less lethal” weapons at protesters, who was involved in arrests and who was involved in chasing down protestors. Some individuals were shot in the head, sometimes as they ran away, causing severe injuries including detached retinas, broken bones, loss of hearing and respiratory difficulties. But Judge Immergut was unwilling to allow any information to provide the identities of the agents and the actual use of force at issue. It was a revolving door of reasonable requests met with deep
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