The Supreme Court Could Soon Decide When a Federal Officer Can Be Sued

Eight years ago, a U.S. Border Patrol officer got into a dispute with Blaine’s owner of a bed and breakfast. The facts are now before the U.S. Supreme Court.

Robert Boule (bed-and-breakfast proprietor) stated that Erik Egbert from Border Patrol was interested in his guest who arrived via New York City. Boule asserts that Egbert was unwilling to leave his property. He also attempted to search it with no warrant after the guest’s car arrived. Boule says he stepped between the car and Egbert, at which point the agent shoved him, “grabbed him and pushed him to the ground.” Boule says the encounter left him with back and hip injuries severe enough to require him to seek medical treatment. Egbert concluded that the guest was legally in the country and evacuated. Boule alleges that when he complained to Egbert’s supervisor about the incident, Egbert contacted the IRS, who then investigated Boule’s business.
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Boule brought suit against Egbert, in 2017, for violating the First and Fourth Amendments rights. THe claim is now on its way to the U.S. Supreme Court. The court will be hearing oral arguments Wednesday. The justices’ decision could have sweeping implications far beyond the two men’s dispute. A broad court ruling could shape whether and how federal Border Patrol agents—or federal law enforcement officers generally—can be sued for alleged wrongdoing. “This case goes to the heart of the rule of law and fundamental principles of constitutional accountability,” says David H. Gans, the director of the human rights, civil rights and citizenship program at the progressive Constitutional Accountability Center, which filed a brief in support of Boule.

This case is based on the 1971 Supreme Court Decision Bivens against Six Unknown Named AgentsFederal lawsuits could be filed against federal officials who have violated the Constitution under the aforementioned law. Since then, there have been many decades of changes. Bivens, the high court has slowly watered down the case’s power, most recently in a 2020 decision, Hernández v. Mesa,It was ruled out that cross-border shots are not grounds for a lawsuit against federal border guard agents. In a concurring opinion, Justice Clarence Thomas argued that “the time has come to consider discarding the Bivens doctrine altogether.”

San Diego, USA. 26th Oct, 2017. A border patrol patch on an officer's uniform on Oct. 26, 2017. At least one U.S. Border Patrol agent reportedly shot a person Friday evening close to the border near San Ysidro. Credit: John Gibbins/The San Diego Union-Tri
John Gibbins—The San Diego Union-Tribune/TNS/AlamyA border patrol patch on an officer’s uniform on Oct. 26, 2017.

Egbert requested the Supreme Court to grant his petition in the High Court. The justices refused to reconsider the Constitutionality of BivensThey both agreed to discuss whether Boule had grounds to file a lawsuit. Egbert says that BivensBoule cannot sue federal officers if the district agrees with him. In 2020, the 9th Circuit ruled against that decision. It is now up to the Supreme Court to decide who was right.

“It’s a really extreme position,” says Cecillia Wang, the deputy legal director of the American Civil Liberties Union (ACLU), which filed a brief in support of Boule. “[Egbert] says basically if your constitutional rights are violated by a federal police officer, you’re out of luck.”

In court filings, Boule admits that people have used the property of his B&B—which is cheekily called The Smuggler’s Inn—“for illicit border crossings in both directions.” Vox reports that in 2018 Canada criminally charged Boule with allegedly helping foreign nationals illegally enter the country, although those charges were later dismissed.

Egbert had reason to be on the property for “border patrol related operations,” says Jennifer Mascott, a professor at Antonin Scalia Law School at George Mason University, who filed a brief in support of the agent. She argues there are several “administrative mechanisms” available for holding Egbert accountable for any wrongdoing beyond civil lawsuits against him, and says that the case raises crucial questions about the separation of powers between the high court and Congress.

“[The court’s]Going to be looking at who decides? They or them? Is it the Supreme Court that can decide what damages should be awarded? Or is it Congress?” Mascott says. She adds that in recent years, Congress has been hesitant to authorize lawsuits against law enforcement officers out of concern for officers’ well-being and job performance. Federal lawsuits could make it less likely that they will be able to fulfill their duties as desired.

Biden Administration The briefing was submitted by the DOJ, which took a position less extreme than Egbert. According to the DOJ, BivensBoule cannot bring a case against a federal agent who patrolled the border because they were so near the U.S./Canada border.

Wang of the ACLU argues the position is still a “gross expansion” of the Supreme Court’s 2020 decision in HernándezThe case was filed by a Mexican family against the border patrol agent accused of shooting their son over the Mexican border. The high court’s decision in that case addressed a cross-border situation. Egbert and Boule had their incident entirely in the United States.

Their Brief, the ACLU points out that U.S. Customs and Border Protection is the largest federal law enforcement agency, with an annual budget of $17.7 billion and statutory powers to conduct warrantless searches within 100 miles of U.S. borders—areas that encompass 65.3% of the U.S. population.

“If the court reaches the conclusion that you can’t have Bivens remedies against all border patrol agents,” Wang says, “it is letting the largest federal police agency in the country get away with misconduct with impunity.”

It’s unclear how sweeping the court’s ruling will be. The court could narrowly decide whether Boule is allowed to sue Egbert. It could also decide to broaden the scope of the law and reform the tools Americans have to hold federal police officers responsible for violating the Constitution.


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