Supreme Court opts to shield Border Patrol officers
In 1971, the Supreme Court authorized damage suits for illegal searches and other rights violations by federal officers, like the narcotics agents who broke into Webster Bivens’ Brooklyn home without a warrant, handcuffed him and arrested him on charges that were later dismissed. The ruling was not unanimous but was not particularly controversial, as it allowed the same kinds of suits that are regularly filed against local police under a post-Civil War federal law.
On Wednesday, the court all but overturned the Bivens ruling, barring suits against Border Patrol agents — including one who allegedly slammed an informant’s head into a car, then threw him on the ground — as well as any claim that a federal officer was punishing someone for exercising First Amendment rights, such as free speech or freedom of the press.
“We have indicated that if we were called to decide Bivens today, we would decline to discover any implied causes of action (for damage suits) in the Constitution,” Justice Clarence Thomas wrote, citing a 2017 ruling that had already narrowed the scope of the earlier case. For now, he said, the court will not allow such lawsuits if it can find “any rational reason (even one) to think that Congress is better suited” to make such a decision.
He did not mention that any current congressional legislation allowing damage suits against federal officers would inevitably be blocked by a Republican filibuster in the Senate. Thomas’ opinion was joined by four fellow conservatives, while Justice Neil Gorsuch said he would go a step further and overrule the 1971 decision, in order to “return the power to create new causes of action to the people’s representatives in Congress.”
In a partial dissent, Justice Sonia Sotomayor agreed that federal law does not authorize suits for punishing the exercise of First Amendment rights, but disputed the ruling’s broader rejection of damage claims against federal officers and appeared to criticize the court’s increasingly ideological majority.
“Just five years after limiting the Bivens standard, a restless and newly constituted court sees fit to refashion the standard anew to foreclose remedies in yet more cases,” wrote Sotomayor, joined by Justices Stephen Breyer and Elena Kagan.
Noting that the nearly 20,000 Border Patrol agents can stop and search vehicles within 100 miles of the U.S. border, Sotomayor said the ruling denies an important legal remedy to “many more individuals who suffer injuries at the hands of other federal officers.”
“Bivens seems pretty dead. They just haven’t made the formal declaration and shoveled dirt on it,” said Laurie Levenson, a criminal law professor at Loyola Law School in Los Angeles and a former federal prosecutor.
Shirin Sinnar, a Stanford law professor and former civil rights attorney, said the ruling was “another nail in the coffin in attempts to hold federal law enforcement agents accountable for violating constitutional rights.”
The case involved a lawsuit by Robert Boule, an innkeeper at the U.S.Canada border in Blaine, Wash., who said he also acted as a paid informant for the Border Patrol. Boule said he told Border Patrol Agent Erik Egbert in 2014 that a Turkish man was about to arrive at the inn. He said that when Egbert arrived and appeared to suspect Boule of wrongdoing, Boule told Egbert to leave, but the agent lifted him up, slammed him headfirst against a vehicle and then threw him to the ground, causing injuries. The Turkish man later went to Canada.
The Ninth U.S. Circuit Court of Appeals in San Francisco ruled that Boule could sue Egbert for excessive force and for retaliating against him by contacting the Internal Revenue Service, leading to an audit of Boule’s tax returns. But the Supreme Court said any damage suit against a Border Patrol agent has “national security implications” and can be authorized only by Congress.
Thomas cited the court’s 2019 ruling dismissing a suit by parents of a 15-year-old Mexican boy who was shot to death by a Border Patrol agent while he and other youths were running up to touch the fence on the Mexican side of the border.
“Congress has provided alternative remedies for aggrieved parties in Boule’s position,” Thomas wrote, referring to the Border Patrol’s year-long internal investigation, which found no serious wrongdoing by Egbert and allowed him to remain on the job. Even if the patrol had found wrongdoing, however, it would not have provided damages to Boule.
Thomas also said allowing suits for an officer’s retaliation against someone’s exercise of First Amendment rights — in this case, Egbert’s alleged punishment of Boule by arranging the IRS audit — would open the door to expensive and baseless claims.
“A plaintiff can turn practically any adverse action into grounds for a retaliation claim,” Thomas wrote.
That portion of the ruling particularly dismayed the Reporters’ Committee for Freedom of the Press, which had filed arguments on behalf of itself and 34 other media organizations urging the court to allow suits against federal agents who attack people for what they say or write. That has occurred in recent protest demonstrations in which officers appeared to target journalists, said Gabe Rottman, director of the committee’s Technology and Press Freedom Project.
The ruling “will remove a significant deterrent to federal officials retaliating against the press because of coverage perceived as critical,” Rottman said. The case is Egbert v. Boule, 21-147.