               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 15a0326n.06

                                          No. 14-1381

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

EUGENE MEEKS; SYLVIA MEEKS; GABRIELLE                   )
                                                                                     FILED
                                                                                May 05, 2015
NEELY; MICHAEL DAVID MEEKS; THOMAS                      )
WILLIAM PIATEK; and DAVID STONE, JR.,                   )                   DEBORAH S. HUNT, Clerk
                                                        )
       Plaintiffs-Appellants,                           )
                                                        )
                                                                ON APPEAL FROM THE
v.                                                      )
                                                                UNITED STATES DISTRICT
                                                        )
                                                                COURT FOR THE EASTERN
SANDRA LARSEN; LESLIE LARSEN; D.                        )
                                                                DISTRICT OF MICHIGAN
CHRISTOPHER ALLEN; STEPHEN HAUG; and                    )
UNITED STATES OF AMERICA,                               )

       Defendants-Appellees.


BEFORE:        BOGGS and McKEAGUE, Circuit Judges; and PEARSON, District Judge.*

       BOGGS, Circuit Judge. Three members of the Hutaree, an allegedly criminal militia

group in Michigan, along with certain family members, filed a civil complaint against federal

law-enforcement officers under Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971). The complaint alleges that, in connection with the execution of

search warrants during the government’s investigation of the Hutaree and the resulting

prosecutions, the officers violated the plaintiffs’ constitutional rights under the First, Second,

Fourth, and Fifth Amendments. The district court dismissed the complaint pursuant to Federal

Rule of Civil Procedure 12(b)(6), and the plaintiffs filed a timely appeal. Because the complaint




*
 The Honorable Benita Y. Pearson, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 14-1381, Meeks v. Larsen


fails to state a claim under Bivens of the violation of any constitutional rights, we affirm the

district court’s decision.

                                                  I

        On March 27, 2013, Plaintiffs-Appellants Thomas Piatek, Michael Meeks, Eugene

Meeks, Sylvia Meeks, and Gabrielle Neely filed a civil complaint against various federal law-

enforcement officials, alleging violations of their federal constitutional rights under Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). On September

30, 2013, the plaintiffs filed an Amended Complaint, which added Plaintiff-Appellant David

Stone, Jr., to the lawsuit. The Amended Complaint sought money damages from FBI agents

Leslie Larsen, Stephen Haug, and D. Christopher Allen and FBI task-force officer Sandra Larsen

stemming from the FBI’s investigation of the Michigan-based militia group known as the

Hutaree and the resulting execution of four search warrants at homes belonging to the Plaintiffs-

Appellants.

        Plaintiffs-Appellants Thomas Piatek, Michael Meeks, and David Stone, Jr., were

defendants in the federal criminal case against the Hutaree. They were acquitted by directed

verdict at the close of the government’s case. The remaining Plaintiffs-Appellants—Eugene

Meeks, Sylvia Meeks, and Gabrielle Neely—are family members of Michael Meeks.

                                                 A

        For a period of about 18 months, the FBI investigated members of the Michigan Hutaree,

a militia group that allegedly “acquired a significant arsenal of weapons, including components

of pipe bombs, and trained as a paramilitary organization.” United States v. Stone, 608 F.3d 939,

944 (6th Cir. 2010). On March 23, 2010, a grand jury indicted several members of the Hutaree,

including Thomas Piatek, Michael Meeks, and David Stone, Jr., on charges of seditious



                                                -2-
No. 14-1381, Meeks v. Larsen


conspiracy, attempt to use weapons of mass destruction, and using and carrying firearms during

and in relation to crimes of violence. Id. at 943–44.

       Also on March 23, 2010, a federal magistrate judge issued a search warrant for the

residence of Eugene Meeks, Sylvia Meeks, and Gabrielle Neely. On March 27, 2010, the

magistrate judge issued additional search warrants for the homes of Thomas Piatek and David

Stone, Jr. On that date, federal and state agents executed the search warrants at those three

locations. On March 30, 2010, the judge issued the final search warrant for the home of Michael

Meeks, and the warrant was executed that same day. At each of the four locations, law-

enforcement officials recovered items listed in the search warrants, including firearms and

ammunition.

       According to the Amended Complaint, each of these warrants was supported by an

affidavit prepared by Defendant-Appellee Sandra Larsen. The affidavit incorporated information

provided by Defendant-Appellee Steven Haug, who allegedly contributed to the FBI’s

investigation into the Hutaree. Haug also reported this information to Defendant-Appellee Leslie

Larsen, who was in charge of the FBI’s investigation and ordered the execution of the search

warrants. Defendant-Appellee D. Christopher Allen supervised the team of state and federal

agents who executed the search warrants and seized property belonging to Plaintiffs-Appellants.

                                                B

       In the criminal proceedings against the members of the Hutaree, Piatek and Stone, Jr.,

moved to suppress evidence obtained during the government’s searches. Piatek’s Motion to

Quash Search Warrant, which was joined by Stone, Jr., asserted that the government lacked

probable cause to search Piatek’s residence because there was no nexus between the location and

any criminal activity. Stone, Jr.’s Franks Motion to Suppress Evidence, which was joined by



                                                -3-
No. 14-1381, Meeks v. Larsen


Piatek and Michael Meeks, asserted that the warrant affidavit prepared by Sandra Larsen failed

to establish probable cause and contained materially false representations and omissions under

the standard elucidated in Franks v. Delaware, 438 U.S. 154 (1978).

       In his report and recommendation, the magistrate judge in the criminal case

recommended that the district court deny Piatek’s and Stone, Jr.’s motions. Specifically, the

magistrate judge found that “the warrant affidavit established probable cause to believe that a

search of the various residences and vehicles would uncover evidence of a crime or contraband.”

The magistrate judge also concluded that the movants “failed to meet their burden of establishing

their entitlement to a Franks hearing.” This conclusion was based on the findings that the “bulk”

of the alleged misstatements identified in the warrant affidavit “do not involve false statements at

all” and, “assuming that the other statements or omissions were deliberately or recklessly false,

excising those statement and including those omissions does not render the affidavit devoid of

probable cause.” After conducting a de novo review, the district court in that case agreed that

“the affidavits supporting the search warrants established probable cause for the searches.”

Furthermore, the court held that the movants failed to “establish that the warrants contained

deliberately or recklessly false material statements or omissions” and thus “there [was] no need

for a Franks hearing.” As a result, the district court denied the motions.

       Despite their lack of success in seeking to suppress the government’s evidence, Piatek,

Michael Meeks, and Stone, Jr., were ultimately acquitted by directed verdict pursuant to Rule 29

of the Federal Rules of Criminal Procedure on March 27, 2012.

                                                 C

       In the Amended Complaint in this civil case, Plaintiffs-Appellants brought a myriad of

Bivens claims attacking the warrant affidavit, which was prepared by Sandra Larsen based in part



                                                -4-
No. 14-1381, Meeks v. Larsen


on information provided by Stephen Haug; the search warrants obtained by Leslie Larsen; and

the resulting searches and seizures conducted under the supervision of Leslie Larsen and D.

Christopher Allen.    The Amended Complaint included: (1) Fourth Amendment claims for

unreasonable search, unreasonable seizure of personal property, and malicious prosecution

(Counts 1, 3, 7, 9, 12, 16, and 17); (2) Second Amendment claims for interference with the right

to keep and bear arms (Counts 2 and 8); (3) a First Amendment claim for infringement on the

free exercise of religion (Count 18); and (4) Fifth Amendment claims for violation of substantive

due process (Counts 4 and 10).1

       On February 28, 2014, the district court granted the motion to dismiss filed by the

individual Defendants-Appellees after, inter alia, concluding that collateral estoppel barred the

re-ligation of challenges to the showing of probable cause in the search warrants; applying

qualified immunity and the three-year limitations period for Bivens claims; and refusing to

extend Bivens liability to the First and Second Amendment claims. Meeks v. Larsen, 999 F.

Supp. 2d 968 (E.D. Mich. 2014). This timely appeal followed.

                                                 II

       Motions to Dismiss. “We review de novo the district court’s order granting dismissal

under Rule 12(b)(6).” Top Flight Entm’t, Ltd. v. Schuette, 729 F.3d 623, 630 (6th Cir. 2013). In

doing so, we accept all material allegations as true and view them in the light most favorable to

the plaintiff, but we do not accept “conclusory legal allegations that do not include specific facts

necessary to establish the cause of action.” New Albany Tractor, Inc. v. Louisville Tractor, Inc.,

650 F.3d 1046, 1050 (6th Cir. 2011). To survive a motion to dismiss, a complaint must present
1
  The remainder of the counts in the Amended Complaint asserted claims against the United
States for trespass to chattels (Counts 5 and 11), false arrest (Count 13), and false imprisonment
(Count 14), and derivative claims for exemplary damages (Counts 6, 15, and 19). These claims
are not raised in this appeal.

                                                -5-
No. 14-1381, Meeks v. Larsen


“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007).

         Bivens Remedy. In Bivens, the Supreme Court recognized a private cause of action for

damages under the United States Constitution—in that case, “for particularly egregious

violations of the Fourth Amendment.” Left Fork Min. Co. v. Hooker, 775 F.3d 768, 774 (6th Cir.

2014).    The Supreme Court later extended the Bivens remedy to other violations of the

Constitution. See Carlson v. Green, 446 U.S. 14, 16 (1980) (Eighth Amendment claims); Davis

v. Passman, 442 U.S. 228, 230 (1979) (Fifth Amendment due-process claims). However, the

Supreme Court has made clear that there is no “automatic entitlement” to a Bivens remedy, “and

in most instances,” the Court has “found a Bivens remedy unjustified.” Wilkie v. Robbins,

551 U.S. 537, 550 (2007). In deciding whether to apply a Bivens remedy, a court will analyze

(1) whether there is any alternative process for safeguarding the constitutional rights at issue; and

(2) even if no alternative exists, whether there are special factors that counsel hesitation in

creating a judicial remedy. Ibid.

         Qualified Immunity.     Qualified immunity is an affirmative defense that shields

government officials performing discretionary functions from liability for civil damages insofar

as their conduct does “‘not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Sheets v. Mullins, 287 F.3d 581, 586 (6th Cir. 2002)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). After a defendant raises the defense

in the first instance, the burden shifts to the plaintiff to demonstrate that the government official

violated a right so clearly established “that every ‘reasonable official would have understood that

what he [was] doing violate[d] that right.’” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011)

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).           In analyzing an assertion of



                                                 -6-
No. 14-1381, Meeks v. Larsen


qualified immunity, a court will determine (1) whether, viewing the evidence in the light most

favorable to the injured party, a constitutional right has been violated; and (2) whether that right

was clearly established. Saucier v. Katz, 533 U.S. 194, 201 (2001).

                                                III

                                  A. Fourth Amendment Claims

       1. Malicious Prosecution. In Counts 12 and 16 of the Amended Complaint, Michael

Meeks, Piatek, and Stone, Jr., brought malicious-prosecution claims against Leslie Larsen for

allegedly instigating a grand-jury investigation based on false and misleading information and

unlawfully seized evidence.

       We have recognized a “‘constitutionally cognizable claim of malicious prosecution under

the Fourth Amendment,’ which ‘encompasses wrongful investigation, prosecution, conviction,

and incarceration.’” Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir. 2010) (quoting Barnes v.

Wright, 449 F.3d 709, 715–16 (6th Cir. 2006)). To succeed on a Fourth Amendment malicious-

prosecution claim, a plaintiff must demonstrate that: (1) a criminal prosecution was initiated

against the plaintiff and the defendant made, influenced, or participated in the decision to

prosecute; (2) there was a lack of probable cause for the prosecution; (3) the plaintiff suffered a

deprivation of liberty, beyond the initial seizure, as a result of the criminal proceeding; and

(4) the criminal proceeding was resolved in the plaintiff’s favor. Id. at 308–09. Our focus is on

the second element.

       Michael Meeks, Piatek, and Stone, Jr., were arrested following a grand-jury indictment.

Their malicious-prosecution claims thus face a high burden because “it has long been settled that

‘the finding of an indictment, fair upon its face, by a properly constituted grand jury,

conclusively determines the existence of probable cause for the purpose of holding the accused



                                                -7-
No. 14-1381, Meeks v. Larsen


to answer.’” Higgason v. Stephens, 288 F.3d 868, 877 (6th Cir. 2002) (quoting Ex parte United

States, 287 U.S. 241, 250 (1932)). There is an exception to this general rule when the defendants

knowingly presented false testimony to the grand jury to obtain the indictment, Martin v.

Maurer, 581 F. App’x 509, 511 (6th Cir. 2014), or testified with a reckless disregard for the

truth, Robertson v. Lucas, 753 F.3d 606, 616 (6th Cir. 2014).

       The Amended Complaint asserts that the indictment was based on “unlawfully seized

evidence and false and misleading information.” However, the Amended Complaint makes no

effort to identify what that false and misleading information was.         Cf. Appellants’ Br. 25

(“Granted, Plaintiffs did not insert into the complaint any specific grand jury testimony but asked

the District Court for leave to do so which was denied . . . .”). Nor does it make any specific

allegations that Leslie Larsen “presented false testimony to the grand jury to obtain the

indictment,” Martin, 581 F. App’x at 511, stating merely that “Leslie Larsen caused to be

instigated a grand jury investigation which utilized unlawfully seized evidence and false and

misleading information.” It is not sufficient, even at the motion-to-dismiss stage, to make only

such vague and conclusory assertions without factual support. See Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (“[T]he tenet that a court must accept as true all of the allegations contained in a

complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”); Martin, 581 F. App’x at 511

(affirming the dismissal of a malicious-prosecution claim in the absence of a specific allegation

of false testimony before the grand jury). Plaintiffs-Appellants have not pled “specific facts

necessary to establish the[ir] cause of action.” New Albany Tractor, Inc., 650 F.3d at 1050.




                                                -8-
No. 14-1381, Meeks v. Larsen


       The indictment in the criminal case against the Hutaree, which is not undermined by

specific, plausible allegations of falsity, established the existence of probable cause. Therefore,

the malicious-prosecution claims fail.2

       2. Unreasonable Search and Seizure. In Counts 1, 3, 7, 9, and 17, Plaintiffs-Appellants

alleged that the Defendants violated their Fourth Amendment rights because there was no

probable cause to search their homes or seize “numerous items of non-contraband personal

property . . . without a valid warrant.”

       In the Bivens context, “[i]t is well-established that a government investigator is liable for

violating the Fourth Amendment when he deliberately or recklessly submits false and material

information in a warrant affidavit.” Johnson v. Hayden, 67 F. App’x 319, 323 (6th Cir. 2003).

The question whether a warrant affidavit is so defective as to support a claim for damages under

the Fourth Amendment is governed by the standard set out in Franks v. Delaware. See Johnson,

67 F. App’x at 324 (applying Franks standard in Bivens case); Hill v. McIntyre, 884 F.2d 271,

275 (6th Cir. 1989) (applying Franks to evaluate a § 1983 claim). Under this approach, “a

plaintiff must establish: (1) a substantial showing that the defendant stated a deliberate falsehood

or showed reckless disregard for the truth and (2) that the allegedly false or omitted information

was material to the finding of probable cause.” Johnson, 67 F. App’x at 324.

       Under the Franks standard, an individual challenging a warrant affidavit must “point out

specifically the portion of the warrant affidavit that is claimed to be false,” and this showing

“should be accompanied by a statement of supporting reasons.” Franks, 438 U.S. at 171. When

applying this standard in the criminal context, we have stressed that:




2
  In light of this holding, we need not address whether Leslie Larsen is entitled to qualified
immunity on this claim.
                                                -9-
No. 14-1381, Meeks v. Larsen


       A defendant who challenges the veracity of statements made in an affidavit that
       formed the basis for a warrant has a heavy burden. His allegations must be more
       than conclusory. He must point to specific false statements that he claims were
       made intentionally or with reckless disregard for the truth. He must accompany
       his allegations with an offer of proof. Moreover, he also should provide
       supporting affidavits or explain their absence.

United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990) (internal citations omitted).

       In addition, a law-enforcement official “ordinarily receives qualified immunity if he or

she relies on a judicially secured warrant.” Hale v. Kart, 396 F.3d 721, 725 (6th Cir. 2005).

However, if “the warrant is so lacking in indicia of probable cause, that official belief in the

existence of probable cause is unreasonable.” Yancey v. Carroll Cnty., Ky., 876 F.2d 1238, 1243

(6th Cir. 1989). Moreover, “an officer cannot rely on a judicial determination of probable cause

if that officer knowingly makes false statements and omissions to the judge such that but for

these falsities the judge would not have issued the warrant.” Ibid.

       The Amended Complaint repeatedly asserts that Haug “omitted materially important

information” and “deliberately provided false information” to Leslie Larsen and Sandra Larsen,

and that Sandra Larsen deliberately or recklessly “asserted unfounded and speculative opinions

and conclusions” in the warrant affidavit. What the Amended Complaint does not do at any

point, however, is identify any statements in the warrant affidavit that are alleged to be false or

materially incomplete. Thus, even at the motion-to-dismiss stage, Plaintiffs-Appellants fall short

of their obligation to present “well-pleaded, nonconclusory factual allegation[s]” that “permit the

court to infer more than the mere possibility of misconduct.” Iqbal, 556 U.S. at 679, 680; see

also Unus v. Kane, 565 F.3d 103, 124 (4th Cir. 2009) (affirming dismissal of a Fourth

Amendment claim where “the plaintiffs fail to sufficiently allege that [the officials]—

deliberately or with reckless disregard for the truth—made any material misrepresentations of

fact in violation of the Constitution”).

                                               -10-
No. 14-1381, Meeks v. Larsen


       In their brief on appeal, Plaintiffs-Appellants cite one paragraph of the warrant affidavit

as an “example of the false substance in the affidavit.” Appellants’ Br. 27–28. In this paragraph,

the affidavit explains that a confidential informant who was relied upon in the government’s

investigation of the Hutaree was “a reliable source of information,” based on his “accurate

descriptions of people and vehicles associated with the” group that were “later verified by

surveillance” and “consensual recordings.” Id. at 27. Plaintiffs-Appellants assert that these

statements are false because the informant was, in fact, “a completely out of control individual

suffering through significant emotional and behavioral problems during the time frame of his

cooperation.” Ibid. Even accepting this allegation as true, it does not establish that the affidavit

was false in any way. The informant still could have been a source of reliable information

despite these troubles, and Plaintiffs-Appellants offer nothing to undermine the affidavit’s

assertion that the informant’s information was verified by other sources. Furthermore, Plaintiffs-

Appellants make no effort beyond making conclusory statements to establish that, even if this

paragraph were false, it was deliberately or recklessly so, or that it was “material to the finding

of probable cause.” Johnson, 67 F. App’x at 324.

       Plaintiffs-Appellants also argue in their brief that “Defendants had no basis to believe

that Michael Meeks resided at 13531 Bemis Road,” the home of his relatives Eugene Meeks,

Sylvia Meeks, and Gabrielle Neely, from which law-enforcement officials seized multiple

firearms and other items.     Appellants’ Br. 40. They assert that the informant and certain

investigators “were well aware” that Michael Meeks did not live there and, thus, “the only

logical explanation” for the search of this premises “is a malicious intent to impose upon the

family of Michael Meeks . . . a form of punishment of Michael Meeks.” Ibid.




                                               -11-
No. 14-1381, Meeks v. Larsen


       The warrant affidavit, however, specifically noted that the Bemis Road address was listed

as Michael Meeks’s residence with the Michigan Secretary of State. There is no allegation that

this information was false. Moreover, there is no dispute that family members of Michael Meeks

actually resided at this address. In light of the address information from the Michigan Secretary

of State, as well as the other unchallenged elements of the affidavit, it would be entirely

reasonable for investigators to believe that there was “a fair probability that contraband or

evidence,” Illinois v. Gates, 462 U.S. 213, 238 (1983), related to Michael Meeks’s association

with the Hutaree would be found at the Bemis Road address. Thus, Plaintiffs-Appellants are not

able to demonstrate that there was any deliberately or recklessly false information material to the

finding of probable cause in the affidavit, see Johnson, 67 F. App’x at 324, or that “official belief

in the existence of probable cause is unreasonable,” Yancey, 876 F.2d at 1243.

       This case is distinguishable from Johnson, in which the plaintiffs’ allegations were

sufficient to survive a motion to dismiss under the pre-Twombly and -Iqbal “no set of facts” test.

Johnson, 67 F. App’x at 324. In pleading a Bivens claim, the Johnson plaintiffs’ complaint

pointed to specific facts suggesting that an FBI agent “knowingly included false information,

material to the finding of probable cause, in the warrant affidavit.” Johnson, 67 F. App’x at 324.

The plaintiffs in Johnson—similar to Plaintiffs-Appellants here—claimed that investigators

knew that an informant’s identification statement was false and that the target of the

investigation did not live at the address listed in the affidavit. However, the Johnson plaintiffs

also specifically alleged that the agent failed to disclose to the magistrate judge who issued the

warrant that the government’s investigations failed to reveal any wrongdoing on the part of the

actual owners of the property to be searched.          Ibid.   There is no such specific allegation

undermining the warrant issued in this case.



                                                -12-
No. 14-1381, Meeks v. Larsen


       Plaintiffs-Appellants have not plausibly alleged that there are material falsehoods or

omissions in the warrant affidavit or that the warrant is so lacking in probable cause as to render

reliance upon it unreasonable. Therefore, the claims of unlawful search and seizure fail.

                                 B. Second Amendment Claims

       In Counts 2 and 8 of the Amended Complaint, Eugene Meeks, Sylvia Meeks, Michael

Meeks, and Piatek alleged that the government’s seizure of certain firearms interfered with their

Second Amendment right to keep and bear arms. They maintain that Bivens liability should be

extended to this context following the Supreme Court’s decisions in District of Columbia v.

Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), which

recognized an individual right under the Second Amendment.

       In pursuing a Bivens claim, “a plaintiff must initially demonstrate (1) a challenged action

attributable to a person acting under color of federal law, and (2) conduct that deprives the party

of a constitutionally protected interest.” Left Fork Min. Co., 775 F.3d at 774 (citing Schweiker v.

Chilicky, 487 U.S. 412, 418–21 (1988)). Here, Plaintiffs-Appellants assert that, acting under

their legal authority and pursuant to an allegedly invalid warrant, federal agents searched their

homes and seized their firearms, ostensibly in violation of their Second Amendment rights.

       As noted above, we undertake a two-step inquiry to determine whether Bivens liability

should be extended to the particular context at issue. Ibid. A Bivens remedy will be inferred

only after analyzing (1) whether there is any alternative process for safeguarding the

constitutional rights at issue; and (2) even if no alternative exists, whether there are special

factors that counsel hesitation in creating a judicial remedy. Wilkie, 551 U.S. at 550. Plaintiffs-

Appellants have, unsurprisingly, failed to point to any cases in which this or any other federal

court has applied Bivens to a Second Amendment claim. See, e.g., Yorzinski v. Imbert, 39 F.



                                               -13-
No. 14-1381, Meeks v. Larsen


Supp. 3d 218, 223 (D. Conn. 2014) (“Bivens liability has not been extended to violations of the

Second Amendment.”). While this fact alone is not dispositive, it does give us pause, especially

considering the Supreme Court’s reluctance to extend Bivens.          See Corr. Servs. Corp. v.

Malesko, 534 U.S. 61, 68 (2001) (“Since Carlson [in 1980] we have consistently refused to

extend Bivens liability to any new context . . . .”).

       First, as the government points out, the Plaintiffs-Appellants advancing a Second

Amendment claim here had “alternative, existing process[es] for protecting” their rights. Wilkie,

551 U.S. at 550. They could have filed a motion under Federal Rule of Criminal Procedure

41(g) for return of property. See Fed. R. Crim. P. 41(g) (“A person aggrieved by an unlawful

search and seizure of property or by the deprivation of property may move for the property’s

return.”). In addition, Plaintiff-Appellants could have—and, in fact, have—sought to vindicate

their constitutional rights by filing a Bivens claim under the Fourth Amendment for improper

seizure, without requiring the court to extend Bivens into an uncharted area of jurisprudence.

       Moreover, there are special factors counseling hesitation in recognizing a Bivens remedy

in this context. Plaintiffs-Appellants are correct that the Supreme Court has clearly established

that “the Second Amendment conferred an individual right to keep and bear arms.” Heller,

554 U.S. at 595. However, the Supreme Court has not set out the full extent of the right

protected by the Second Amendment. Neither Heller nor the Court’s subsequent decision in

McDonald, 561 U.S. 742, which held that the Due Process Clause of the Fourteenth Amendment

incorporates the Second Amendment against the states, addressed liability for constitutional tort

claims or suggested that a law-enforcement officer might be subject to monetary damages for

seizing firearms pursuant to a warrant.        Nor did these decisions clearly establish that an

individual’s Second Amendment rights are violated by the deprivation of specific firearms where



                                                 -14-
No. 14-1381, Meeks v. Larsen


the individual’s right to acquire other firearms is not abridged. See, e.g., Sutterfield v. City of

Milwaukee, 751 F.3d 542, 571 (7th Cir.), cert. denied, 135 S. Ct. 478 (2014) (“Whether and to

what extent the Second Amendment protects an individual’s right to possess a particular gun . . .

is an issue that is just beginning to receive judicial attention.”); Walters v. Wolf, 660 F.3d 307,

318 (8th Cir. 2011) (finding no Second Amendment violation where the defendant lawfully

seized one firearm and did not prohibit the plaintiff from acquiring other firearms, but refusing to

foreclose the possibility that the Second Amendment applies to specific deprivations).

       Even if we accept Plaintiffs-Appellants’ invitation to extend Bivens to this context, the

Amended Complaint is insufficient to state a claim. Especially in light of our holding that the

search warrant was not clearly lacking in probable cause, the law-enforcement officials here

would be entitled to qualified immunity because their conduct did “not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.” Harlow,

457 U.S. at 818; see also Doutel v. City of Norwalk, No. 3:11-CV-01164 VLB, 2013 WL

3353977, at *25 (D. Conn. July 3, 2013) (“In the absence of controlling authority recognizing a

Second Amendment violation in similar circumstances for the seizure by law enforcement

officials of a particular firearm, and in light of the scarcity of applicable Second Amendment

case precedent . . . , the Defendants are entitled to qualified immunity.”).

                                    C. First Amendment Claim

       In Count 18 of the Amended Complaint, Stone, Jr., alleged that his First Amendment

right to the free exercise of religion was violated by the seizure of copies of the Holy Bible. As

in the Second Amendment context, there is a dearth of precedent applying Bivens to free-

exercise claims. See, e.g., Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813 n.6 (8th Cir. 2008)

(“We have never found a Bivens action to extend to a Free Exercise claim, and it is doubtful that



                                                -15-
No. 14-1381, Meeks v. Larsen


we would do so.”).      In Iqbal, the Supreme Court “assume[d], without deciding,” that the

plaintiff’s claim under the Free Exercise Clause was “actionable under Bivens”—but only after

observing that the government defendants did not “press” this issue. 556 U.S. at 675. Indeed, in

making this assumption, the Supreme Court expressly noted it has “not found an implied

damages remedy under the Free Exercise Clause” and has “declined to extend Bivens to a claim

sounding in the First Amendment.” Ibid. (citing Bush v. Lucas, 462 U.S. 367 (1983)).

       As with the Second Amendment claims discussed above, Stone had alternative methods

for seeking return of his property, and it was not apparent that the seizure of particular religious

materials pursuant to a search warrant, supported by probable cause, violated clearly-established

rights. Moreover, Stone has not pled any facts indicating that the seizure of specific religious

materials in this case “placed a substantial burden on the practice of his religion.” Wilson v.

N.L.R.B., 920 F.2d 1282, 1290 (6th Cir. 1990). Thus, even assuming that a free-exercise claim is

actionable under Bivens, the Amended Complaint fails to plead a constitutional violation

sufficient to overcome qualified immunity.

                                   D. Fifth Amendment Claims

       In Counts 4 and 10 of the Amended Complaint, Eugene Meeks, Sylvia Meeks, Michael

Meeks, and Piatek claimed that false and misleading statements and material omissions in the

warrant affidavit reflected “malicious” and “outrageous” conduct and “demonstrate[d] a reckless

disregard of the[ir] substantive due process rights.” As noted by the government, see Appellee’s

Br. 35, Plaintiffs-Appellants “concede[d]” in their response to the motion to dismiss below that

their substantive-due-process claims “as currently worded cannot proceed.” The district court

denied Plaintiffs-Appellants’ request to further amend those counts, see Meeks, 999 F. Supp. 2d

at 982, and for good reason. To the extent that those claims involve a challenge to the warrant



                                               -16-
No. 14-1381, Meeks v. Larsen


affidavit and the resulting searches, seizures, and prosecutions, they are governed by the specific

guarantees of the Fourth Amendment, which “go hand in hand with criminal prosecution,” rather

than the “scarce and open-ended” “guideposts” of substantive due process. Albright v. Oliver,

510 U.S. 266, 274 (1994).

       Plaintiffs-Appellants present an alternative theory on appeal that the law-enforcement

officials searched a residence that they allegedly knew did not belong to Michael Meeks out of

“a malicious intent to impose [punishment] upon the family of Michael Meeks” as retaliation

against Michael. Appellants’ Br. 40. Even if this claim, which does not appear in the Amended

Complaint, were plausible on its face, Plaintiffs-Appellants offer no explanation as to why this

claim would not more properly be analyzed under the Fourth Amendment standards concerning

probable cause and the veracity of search warrants, which have been fully addressed above.

                                                IV

       Plaintiffs-Appellants have failed to plausibly allege that their constitutional rights were

violated during the government’s investigation of the Hutaree or that they are entitled to a

remedy under Bivens. Therefore, we AFFIRM the district court’s decision dismissing their

complaint.




                                               -17-
