Justices Argue Whether Border Agents Can Face Bivens Actions
Skip to main content

Supreme Court Justices Spar over Whether Border Patrol Agents Can Be Sued for Violating the Constitutional Rights of American Citizens

 
Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan listen to then-President Donald Trump's address before a joint session of Congress in a February 28, 2017 file photo.

Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan listen to then-President Donald Trump’s address before a joint session of Congress in a February 28, 2017 file photo.

The Supreme Court of the United States heard oral arguments Wednesday in Egbert v. Boule, a case from the U.S. Court of Appeals for the Ninth Circuit surrounding a U.S. Customs and Border Protection (CBP) agent’s mistreatment of a bed-and-breakfast owner at the U.S.-Canada border. The case is the latest attempt to create an “extension” of allowable “Bivens claims.” Those are the actions which allow individuals to sue federal officials for violating constitutional rights.

Robert Boule is a U.S. citizen who owns, operates, and lives in the “Smuggler’s Inn” in Blaine, Washington — a town near the border that has long been considered the site of illegal border crossings. In 2018, Boule himself was charged by Canadian authorities with assisting U.S. foreign nationals unlawfully enter Canada. During Wednesday’s oral arguments, Boule’s attorney mentioned to the justices that her client is also an informant for the U.S. Immigration and Customs Enforcement (ICE).

The facts giving rise to Boule’s claim are as follows. CBP agent Erik Egbert stopped Boule one day in 2014 in town near Boule’s property and asked Boule about a guest expected to check into the inn that night. After hearing that the guest had flown in from Turkey, via JFK Airport, Egbert drove to the Smuggler’s Inn that evening and waited in his vehicle for the guest to arrive. Egbert did not obtain a warrant for his actions.

When the guest arrived, Egbert entered Boule’s private driveway and attempted an interception. Boule asked Egbert to leave, Ebert refused, and the confrontation became physical. When Boule refused to move away from Egbert’s car, Egbert grabbed him and pushed him onto the ground.

Egbert then asked the hotel guest about his immigration status, eventually concluding that the guest was lawfully present in the U.S. Meanwhile, Boule called 911, complained about Egbert’s actions to a supervisor, and later sought medical attention for back injuries sustained during the altercation. After the incident, Egbert allegedly retaliated against Boule in a number of ways, including calling the Internal Revenue Service and asking the agency to perform a tax audit on Boule. According to Boule, compliance with the audit cost him $5,000 in accounting fees, and the audit itself yielded no evidence of wrongdoing on Boule’s part.

Boule filed a complaint against Egbert in federal district court. He brought a “Bivens claim” and sought damages for an alleged violation of his First and Fourth Amendment rights.

Bivens claims” are claims brought against federal officials as a kind of federal corollary to Section 1983 claims against state actors. The name is derived from the 1971 SCOTUS case Bivens v. Six Unknown Named Agents, in which the Court found an implied cause of action against federal officials who violate constitutional rights.

The future of Bivens claims has been a hot-button legal issue of late, as the Supreme Court has regularly declined to extend the reach of Bivens claims.  The court recently denied claims brought by the family of a Mexican child killed at the U.S.-Mexico border by a U.S. Border Patrol agent.  Moreover, Justice Clarence Thomas wrote in 2020 that he believed “the time has come to consider discarding the Bivens doctrine altogether” — thus leaving no recompense for those who argue their rights were violated.

Egbert argued that his actions had been justified based on national security concerns. The district court sided with Egbert on summary judgment, dismissing Boule’s claims on the ground that they were not a proper use of Bivens. However, on appeal, the Ninth Circuit reversed, remanding the case back to the trial court. Egbert petitioned for certiorari, and SCOTUS agreed to hear the case.

The Biden administration joined the case as an amicus, arguing that even if Bivens is extended in other cases, the current case should not be permitted to proceed.

Oral arguments centered around one central question: whether Egbert’s actions were the similar enough to the those contemplated by Bivens to allow Boule’s claim to move forward, or whether they were so different as to constitute an expansion of the Bivens rule.

Chief Justice John Roberts asked Egbert attorney Sarah Harris why the facts in this case were “so different” from the original Bivens case.  He commented that the fact that Egbert was a border patrol agent as opposed to some other federal law enforcement agent “doesn’t seem so relevant” in the current context.

The usual trio of justices on SCOTUS’s left flank were even clearer as to where they stood on the analysis.

Justice Sonia Sotomayor framed her take on the Boule’s claim bluntly.

“I thought the issue was excessive force, and I thought that the person making the claim is a U.S. citizen. And in Bivens, it was an excessive force claim in a private home.”

She continued by saying that in her view, neither narcotics agents, nor Alcohol Tobacco and Firearms (ATF) agents, nor CBP agents were entitled to use excessive force.

Justice Stephen Breyer continued that line of questioning, rapidly firing facts and questions at Harris.

“There are 83 different agencies where the officers are federal, they’re authorized to make arrests, they carry firearms, they provide police protection as their primary function,” he began.

“You agree that Bivens applies in Shasta County, California?” the justice asked before switching to more noticeable sarcasm.  “And April and May of this year, even though Bivens didn’t take place in April or May?”

Later, Justice Elena Kagan asked Harris skeptically, “Your answer is that across the board, Bivens doesn’t apply to Border Patrol?”

Michael Huston argued for the United States and supported Egbert as an amicus.

“Do you think there is a meaningful difference between Border Patrol agents and narcotics agents?” Justice Thomas asked Huston.

Huston said that CBP agents present “a new context” but that the viability of a Bivens claim depended primarily on a particular officer’s actions.

In response, Breyer offered a different perspective.

“After 9/11, there were quite a few local policemen as well as FBI agents and federal police in New York City looking for terrorists, which is certainly a national law enforcement function,” the justice said in a preface to a question. “Is it the position of the solicitor general and government that if any of those normal agents that fall under Bivens (FBI, ordinary police, etc.), if they had beaten somebody over the head unreasonably and acted contrary to the Constitution, there would be no Bivens action?”

When Huston answered that there would in fact be no Bivens action under the facts of Breyer’s hypothetical, Breyer asked whether that interpretation of the precedent is really an extension (as Egbert argued) or whether it would actually constitute a “narrowing” of the original Bivens rule.

Justice Samuel Alito, who authored the most recent SCOTUS decision which refused to allow Bivens claims against CBP agents, asked Boule’s attorney, Felicia Ellsworth, whether she would take a different position if the incident had occurred right at the U.S.-Canada border. Ellsworth allowed that a CBP agent “actively engaged in trying to stop cross-border conduct” would present “a closer case.”

“Since regulating the conduct of agents at the border unquestionably has national security implications, the risk of undermining border security provides reason to hesitate before extending Bivens into this field,” Alito wrote recently in Hernandez v. Mesa.  (In 1971, the Bivens court held that an implied cause of action existed where a person’s constitutional rights had been violated.)

As discussions turned toward the special concerns raised by the work of CBP agents, Alito mentioned that in the Hernandez case, “the government of Mexico did not object to that case going forward.”

Justice Kagan countered:  “It’s obviously true that Prime Minister Trudeau is not sitting up late at night thinking about this case . . . but is that what’s required?”

Justice Neil Gorsuch questioned Ellsworth by regrouping the parties’ (or, perhaps, the justices’) concerns. Gorsuch laid out the dispute about whether or not the case presents an expansion of Bivens at all, and whether it’s the agency, the location, or the officer’s conduct that most influences the outcome.

“I guess I’m just stuck,” Gorsuch told Ellsworth. “What is a good and faithful judge supposed to try and do with all of this mess, acknowledging the fact that his Court hasn’t recognized a new Bivens action in decades?”

What, precisely, the justices will do with the “mess” is precisely what court-watchers are waiting to see.

[image via Alex Wong/Getty Images]

Have a tip we should know? [email protected]

Filed Under:

Follow Law&Crime:

Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos