Kent Terry, Sr. v. William Newell

MEMORANDUM

The parents of deceased Border Patrol Agent Brian Terry appeal the district court’s dismissal of this Bivens action against employees of the Bureau of Alcohol, Tobacco, Firearms and Explosives and an Assistant United States Attorney (collectively, the “Officials”).

This action arises out of the notorious “Operation Fast and Furious” (the “Operation”). The Operation, designed and implemented by the Officials, allowed individuals with clean backgrounds to purchase firearms and then “gunwalk” them to Mexican cartel members. The Officials hoped that by tracking the guns, they would ultimately be able to dismantle the cartel. Agent Terry was shot and killed near the Mexico border in December 2010 by cartel operatives using firearms “gunwalked” under the Operation.

The Terrys’ amended complaint alleged that the Officials violated the substantive Due Process Clause of the Fifth Amendment by knowingly creating an increased risk of danger to Agent Terry. The district court dismissed the complaint, declining to recognize a Bivens remedy because statutory benefits available to the Terrys were a “convincing reason for the Judicial Branch to refrain from providing a new and…