Jerry L. Branch, Valenna Branch, Colby Branch v. Dale L. Tunnell, Individually and as Special Agent of Bureau of Land Management, State of Montana

Three years ago, we reversed the district court’s holding that the Bivens complaint filed by plaintiffs Jerry L. Branch and his daughters Valenna and Colby Branch (collectively, Branch) could survive a motion to dismiss premised on the defense of qualified immunity. Branch v. Tunnell, 937 F.2d 1382 (9th Cir.1991) (Branch I). Branch alleged that defendant Dale L. Tunnell, a Special Agent with the Interior Department’s Bureau of Land Management (BLM), violated Branch’s Fourth Amendment rights by knowingly or recklessly misleading the magistrate judge in an affidavit for warrants to search Branch’s home and business. We held that a district court must apply a “heightened pleading standard” in Bivens or § 1983 cases where the defendant’s subjective intent is an element of the plaintiffs constitutional tort. Id. at 1386.

In the interim, several events of note have taken place. Branch returned to the district court and filed an amended complaint, which Tunnell met with another motion to dismiss. The district court granted the motion, finding that Branch had failed to allege specific facts tending to show that Tunnell either knew or should have known of allegedly false statements in the…