University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name Drewniak v. C.B.P. IM-NH-0002
Docket / Court 1:20-cv-00852 ( D.N.H. )
State/Territory New Hampshire
Case Type(s) Immigration and/or the Border
Attorney Organization ACLU Affiliates (any)
ACLU National (all projects)
Case Summary
After being stopped and detained without a warrant at a U.S. Customs and Border Protection (CBP) checkpoint 90 miles from the Canadian border, the plaintiff brought this lawsuit in the U.S. District Court for the District of New Hampshire on August 11, 2020, challenging CBP's practice of using ... read more >
After being stopped and detained without a warrant at a U.S. Customs and Border Protection (CBP) checkpoint 90 miles from the Canadian border, the plaintiff brought this lawsuit in the U.S. District Court for the District of New Hampshire on August 11, 2020, challenging CBP's practice of using checkpoints for general crime control. The plaintiff sued CBP, U.S. Border Patrol, the Deputy Chief Border Patrol Agent for the Swanton Sector (which policed some counties of New Hampshire), and the two agents who stopped and detained the plaintiff. Represented by the ACLU and private counsel, the plaintiff sought compensatory and punitive damages, declaratory judgment, preliminary and permanent injunctive relief, and attorneys' fees. The plaintiff alleged that from August 25-27, 2017, CBP and Woodstock Police Department (“WPD”) stopped every vehicle travelling southbound on I-93 and used drug-sniffing dogs to inspect the vehicles. The plaintiff along with 30 individuals were charged in state court with violation-level offenses for allegedly possessing small amounts of marijuana. The plaintiff delineated two separate counts in their complaint: (Count 1) a claim for damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), that the agents who stopped and detained the plaintiff without a warrant violated the Fourth Amendment and (Count 2) a claim for injunctive and declaratory relief against CBP, alleging that there was a substantial risk the plaintiff's rights would again be violated if CBP were not enjoined from conducting additional checkpoints in New Hampshire under 28 U.S.C. § 2201. This case was assigned to Judge Joseph A. DiClerico, Jr., who recused himself, and reassigned to Chief Judge Landya B. McCafferty.

On November 13, 2020, both CBP agents filed motions to dismiss for failure to state a claim or, in the alternative, for summary judgment. That same day, CBP filed a motion to dismiss for lack of subject matter jurisdiction. On November 23, 2020, one of the agents stipulated a voluntary dismissal, which the court ordered the next day.

On April 8, 2021, the court granted motion to dismiss Count 1, refusing to extend Bivens to CBP officers in this context. The court applied a two-part test: (1) whether there was already a precedent applying Bivens to this context and if it would bring in a "new category of defendants," and (2) whether there were "special factors counseling hesitation." The court found that, although this case did not extend Bivens to a new category, it would bring in new defendants by extending Bivens to border patrol agents. The court also noted some special factors, including provisions of the INA and national security concerns.

In this same opinion, the court denied the motion to dismiss Count 2. The court found the plaintiff had sufficiently demonstrated Article III standing at the pleading stage. The plaintiff plausibly alleged that he traveled along I-93 in Woodstock on a frequent basis, and CBP and Garcia failed to persuasively contest the plaintiff’s allegation that they have a practice or policy of conducting checkpoints in that area.

As of November 3, 2021, the case is pending trial.

Calvin Kim - 11/12/2021


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Issues and Causes of Action
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Issues
Constitutional Clause
Unreasonable search and seizure
Defendant-type
Law-enforcement
General
Improper use of canines
Search policies
Transportation
Immigration/Border
Constitutional rights
Criminal prosecution
Causes of Action Declaratory Judgment Act, 28 U.S.C. § 2201
Ex Parte Young (Federal) or Bivens
Defendant(s) U.S. Customs and Border Protection
Plaintiff Description New Hampshire resident driving within 100 miles of Canadian border, stopped at a checkpoint and found to possess small quantity of hash oil.
Indexed Lawyer Organizations ACLU Affiliates (any)
ACLU National (all projects)
Class action status sought No
Class action status outcome Not sought
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Filed 08/11/2020
Case Ongoing Yes
Court Docket(s)
D.N.H.
11/03/2021
1:20-cv-00852-LM
IM-NH-0002-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
D.N.H.
08/11/2020
Complaint for Damages and Injunctive Relief [ECF# 1 & 1-1 to 1-2]
IM-NH-0002-0001.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.N.H.
01/26/2021
Order [ECF# 38] (2021 WL 260399)
IM-NH-0002-0002.pdf | WESTLAW | Detail
Source: PACER [Public Access to Court Electronic Records]
D.N.H.
04/08/2021
Order [ECF# 49] (2021 WL 1318028)
IM-NH-0002-0003.pdf | WESTLAW | Detail
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges McCafferty, Landya B. (D.N.H.) show/hide docs
IM-NH-0002-0002 | IM-NH-0002-0003 | IM-NH-0002-9000
Plaintiff's Lawyers Bissonnette, Gilles R (New Hampshire) show/hide docs
IM-NH-0002-0001 | IM-NH-0002-9000
Bond, Emma E. (Maine) show/hide docs
IM-NH-0002-0001 | IM-NH-0002-9000
Diaz, James M (Vermont) show/hide docs
IM-NH-0002-0001
Dutton, Steven J (New Hampshire) show/hide docs
IM-NH-0002-0001 | IM-NH-0002-9000
Ernst, Lia (Vermont) show/hide docs
IM-NH-0002-0001 | IM-NH-0002-9000
Harris, Scott H (New Hampshire) show/hide docs
IM-NH-0002-0001 | IM-NH-0002-9000
Heiden, Zachary L. (Maine) show/hide docs
IM-NH-0002-0001
Kim, SangYeob (New Hampshire) show/hide docs
IM-NH-0002-0001 | IM-NH-0002-9000
Klementowicz, Henry (New Hampshire) show/hide docs
IM-NH-0002-0001 | IM-NH-0002-9000
Scherr, Albert E IV (New Hampshire) show/hide docs
IM-NH-0002-0001 | IM-NH-0002-9000
Sisti, Mark L (New Hampshire) show/hide docs
IM-NH-0002-0001 | IM-NH-0002-9000
Walker, Jeremy T (New Hampshire) show/hide docs
IM-NH-0002-0001 | IM-NH-0002-9000
Defendant's Lawyers McCormack, Michael T (New Hampshire) show/hide docs
IM-NH-0002-9000
Rabuck, Robert J. (New Hampshire) show/hide docs
IM-NH-0002-9000

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