Several recent Supreme Court decisions have made it practically impossible to sue a federal officer over alleged violations of constitutional rights. Now the Court has agreed to hear a case that could either slow this sorry trend or continue it.
The case is Egbert v. Boule. Robert Boule is the owner of a bed-and-breakfast in Washington state near the Canadian border. Border Patrol agent Erik Egbert sought to question one of Boule's guests, a Turkish national, about his immigration status. Boule told the agent to get off of his property, but Egbert refused to leave. Egbert then allegedly shoved Boule against a car and pushed him to the ground, injuring his shoulder. After Boule complained to Egbert's superiors, the agent allegedly retaliated by asking the IRS to investigate Boule. Boule was audited.
Boule filed suit in federal court under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971), which said that federal officers may be held civilly liable for constitutional rights violations. Unfortunately for Boule, the Court has since narrowed Bivens to the point of practically overruling it.
In Ziglar v. Abbasi (2017), for example, SCOTUS said that if a Bivens claim arises in a "new context"—meaning "the case is different in a meaningful way from previous Bivens cases decided by this Court"—then the presiding judge must search for any "special factors counselling hesitation." If any such factor is found, the lawsuit against the federal officer must be tossed. "If we have reason to pause before applying Bivens in a new context or to a new class of defendants," the Court emphasized in Hernandez v. Mesa (2020), "we reject the request."
Boule sued Egbert for violating his rights under the Fourth Amendment (for refusing to leave Boule's property and then using force against him) and the First Amendment (for retaliating against Boule's lawful speech criticizing the agent's actions). Boule won at the U.S. Court of Appeals for the 9th Circuit, which said that any hesitancy about letting this Bivens claim proceed is "outweighed by compelling interests in favor of protecting United States citizens from unlawful activity by federal agents within the United States." The Supreme Court will review that 9th Circuit decision.
The High Court's recent hostility towards recognizing any new Bivens claims does not exactly bode well for Boule. Nor does it bode well for anyone interested in seeing rogue federal officers held civilly accountable. As Judge Don Willett of the U.S. Court of Appeals for the 5th Circuit observed in a similar case earlier this year, the Supreme Court has undermined Bivens to such a grave extent that "redress for a federal officer's unconstitutional acts is either extremely limited or wholly nonexistent, allowing federal officials to operate in something resembling a Constitution-free zone."
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