People For the American Way

Trump Justices Cast Deciding Votes to Significantly Limit Accountability for Misconduct by Border Agents Even Against US Citizens

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Trump Justices Cast Deciding Votes to Significantly Limit Accountability for Misconduct by Border Agents Even Against US Citizens

Trump Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett cast deciding votes in a 6-3 decision that made it much harder for even US citizens to seek damages and accountability from US Border Patrol (CBP) agents for harmful misconduct. Justice Thomas wrote the 6-3 June 2022 opinion in Egbert v Boule.


What happened in the lower courts in the Boule case?

 Robert Boule owns and operates a small inn in Washington state, very near to the Canadian border. Boule is a US citizen and has frequently cooperated with the US Border Patrol. This has included answering inquiries about his hotel guests.

In 2014, he answered questions about a guest arriving at his inn who had traveled overseas. The agent, Erik Egbert, said nothing. But when the guest arrived, Egbert pulled up behind the car carrying the guest and approached the vehicle with no explanation. When Boule asked Egbert to leave, he refused with no explanation.

According to Boule’s complaint, Egbert then pushed Boule against the car and “grabbed him and pushed him aside and onto the ground.”  Boule had to seek medical treatment for his injuries. Egbert found no problem with the guest’s immigration status and left.

Boule later sued Egbert for misconduct, including improper use of excessive force under the Fourth Amendment. Because a constitutional violation by a federal agent constituted a key part of the case, Boule relied in part on the Supreme Court’s long-established Bivens doctrine. That rule authorizes lawsuits to hold federal officials accountable under the constitution for constitutional violations that cause serious injury. But a district court dismissed the case without a trial.

On appeal, a Ninth Circuit panel reversed, holding that Boule should have the opportunity to prove his case at trial. The full Ninth Circuit declined to review the case, despite harsh dissents primarily by Trump judges. One dissenter called Bivens an improper “judicial usurpation” of authority, about which he claimed  the Supreme Court has since had “buyer’s remorse.” As the panel explained, however, numerous courts around the country have authorized such lawsuits claiming excessive force “against border patrol agents under the Fourth Amendment.”


What did the Supreme Court majority do?

 Unfortunately, the Court majority proved the Trump dissenting judge exactly right and reversed the decision below. Consequently, Boule will have no chance to prove his case and get no accountability in court for the agent’s misconduct.

Thomas maintained that despite Bivens, the Court has “at best, uncertain” authority to permit someone injured by federal officers’ unconstitutional misconduct to sue under the Constitution. He claimed that under the law since Bivens, even a “single sound reason” to decide that Congress rather than the courts should determine whether someone can sue for such injury has become sufficient. He asserted several such reasons in this case. He claimed that the Court had never recognized the ability to sue Border Patrol agents under Bivens, and that previous cases suggested this should be Congress’ decision because of potential “national security implications.”

Thomas also maintained that Congress had provided “alternative remedies” because people like Boule can file grievances against agents, as Boule did here. Thomas also reversed the court of appeals’ decision to allow Boule to sue under the First Amendment for retaliation, a result that drew no dissent.  Trump justice Gorsuch went even further in a separate concurring opinion. He stated explicitly that Bivens was a “misstep” and that the Court should now decide that there is “no place” for judicial decisions to authorize lawsuits to hold federal officials accountable for violating the Constitution.


What did the dissent say and what’s the impact of the ruling?

 Justice Sotomayor strongly dissented on behalf of herself and Justices Stephen Breyer and Elena Kagan. She explained that the majority ruling “contravenes precedent” concerning federal agent liability for constitutional misconduct under Bivens. Indeed, she went on, it will “strip many more individuals who suffer injuries at the hands of other federal officers” of “an important remedy.”

Sotomayor explained specifically the errors in Thomas’ rationale. She noted that this case closely resembled Bivens because it concerned federal agents’ alleged use of “constitutionally unreasonable force” against someone. “Existing precedent,” she wrote, clearly “permits Boule to seek compensation for his injuries in federal court” and does not support Thomas’ “single, sound reason” rationale. Only five years ago, she pointed out, the Court emphasized the “powerful reasons” to retain the Bivens remedy in the Fourth Amendment context. The fact that Egbert was a border patrol and not a drug agent, she went on, “plainly” is not a “meaningful” distinction that would warrant different treatment of his use of “constitutionally excessive force.”

If it were, she noted, then the Court would need to reconsider Bivens on the excessive use of force by agents of each of the “83 different federal law enforcement agencies” with authority to act as Egbert did. The facts of the case, moreover, show that no “national security implications” existed, a claim Sotomayor called “sheer hyperbole.” And the existence of a grievance procedure, Sotomayor went on, “does not provide Boule with any relief” for his injuries. This remains particularly true since the grievance procedure produced no relief in this case and Congress had not “explicitly declared” that the procedure would substitute for a lawsuit by injured parties.

Sotomayor elaborated on the “severe” consequences of the Court’s ruling. Almost 20,000 CBP agents have now become “absolutely immunized” from any liability for damages, “no matter how egregious the misconduct or resultant injury.” This can include actions “up to 100 miles away from the border.” The holding “shrinks Bivens” in the “law enforcement sphere where it is needed most.”

The majority’s ruling, Sotomayor concluded, “ignores our repeated recognition of the importance of Bivens actions” to help prevent and remedy “unconstitutional conduct by federal law enforcement officers.” It “closes the door” of the federal courthouse to “many who will suffer serious federal constitutional violations at the hands of federal agents.” And it presents an all too typical example of damaging actions by the Supreme Court after the addition of three Trump justices.



Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch, police accountability, police misconduct, Supreme Court