## Facts

- In 1973, an armed group occupied Wounded Knee on the Pine Ridge Reservation, prompting a federal law-enforcement response that included roadblocks and a prolonged perimeter around the area.
- Native American residents and others present during the events alleged they were seized and confined within an armed perimeter and subjected to searches and surveillance.
- Plaintiffs alleged senior federal officials used U.S. Army personnel and military resources to execute civilian law enforcement without express constitutional or congressional authorization.
- Plaintiffs sought damages against federal officials under a Bivens theory, alleging violations of the Posse Comitatus Act (PCA), 18 U.S.C. § 1385, and the Fourth, Fifth, and Eighth Amendments.
- The case was filed in 1975, transferred to the District of South Dakota, and dismissed for failure to state a claim.

## Issues

1. Whether allegations that federal officials used the Army to seize and confine civilians in violation of the PCA can state a Bivens claim for an unreasonable seizure under the Fourth Amendment at the pleading stage.
2. Whether the complaint adequately stated claims under the Fifth Amendment and Eighth Amendment.
3. Whether immunity defenses could be resolved on a motion to dismiss for failure to state a claim.
4. Whether the Supreme Court could decide the merits given recusals resulting in a lack of quorum, and if not, the proper disposition under 28 U.S.C. § 2109.

## Decision

- The Eighth Circuit panel reversed the dismissal in part, holding the complaint plausibly alleged a Fourth Amendment unreasonable-seizure claim based on an alleged PCA-violative use of the Army; it affirmed dismissal of the Fifth and Eighth Amendment theories and remanded.
- The Eighth Circuit en banc adopted the panel’s reasoning and reached the same result, leaving immunity and related defenses for later stages rather than resolving them on the pleadings.
- The Supreme Court affirmed the Eighth Circuit’s judgment under 28 U.S.C. § 2109 because it lacked a quorum, explicitly issuing no merits ruling; the affirmance had the same effect as an affirmance by an equally divided Court.

## Legal Principles

- A complaint may state a Fourth Amendment unreasonable-seizure claim under Bivens where it alleges that federal officials effected a seizure by using the U.S. Army to execute civilian law enforcement in violation of the PCA, at least for purposes of Rule 12(b)(6).
- Not every statutory violation establishes a constitutional violation, but the Eighth Circuit treated an alleged PCA violation as potentially bearing on Fourth Amendment reasonableness given the tradition limiting military involvement in civilian law enforcement.
- Dismissal for failure to state a claim is improper where the pleaded facts, taken as true, plausibly allege an actionable Fourth Amendment seizure; ultimate liability and defenses may be addressed on a fuller record.
- When the Supreme Court lacks a quorum and the case cannot be heard in the next Term, 28 U.S.C. § 2109 requires affirmance of the judgment below with the same effect as an equally divided Court, without resolving the merits.

## Conclusion

The Supreme Court left standing the Eighth Circuit’s determination that plaintiffs plausibly pleaded a Bivens Fourth Amendment claim by alleging they were seized through an unauthorized military role barred by the Posse Comitatus Act, but it did so solely because the Court lacked a quorum and therefore did not decide the substantive questions.


Haig v. Bissonette, 485 U.S. 264 (1988)