SCOTUS Has Made It Practically Impossible To Sue a Rights-Violating Federal Officer
A new case asks whether a Border Patrol agent may be sued for alleged First and Fourth Amendment violations.
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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Fuck Erik Egbert
Roberts looks like he’s thinking about it.
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Since the injury and IRS retaliation appear to be established facts, Egbert has been fired, yes?
Don’t be silly. He has been promoted.
If we had something resembling a Constitution, the Supreme Court would say, “Congress refused to let the federal courts take cognizance of these cases – which…wait for it…is equivalent to a decision by Congress to let the state courts handle them. Because of course it would be intolerable if *no* court could hear complaints of illegal behavior by U. S. officials – that would violate the retained rights of the people mentioned in the 9th Amendment.”
In response to that decision, Congress would drop everything and empower the federal courts to hear these cases – the federal cop unions would actually insist on it. They wouldn’t want to take chances with the state courts.
It seems that what the Justice Department asked for in the Bivens case – the victim would sue in state court under state law and then the case would be removed to federal court for a state-law-based decision – the constitutional issue would come in because it would indicate whether the federal official was acting in accordance with the constitution (no liability) or in violation of the constitution (liability because their actions have no federal protection and they can be accountable to state law like a private citizen).
Bivens is the exception, not the rule. The trial lawyers are always happy to expand civil liability. Always remember that just because the defendant is an asshole doesn’t mean he should lose – the case has consequences as a precedent. And because we have mad god kings in black robes, pretty much any case has larger implications as a precedent than it does to its actual parties.
Good rules sometimes protect bad people – but you need to evaluate the rule as your primary concern.
The position taken by the feds themselves in the Bivens case:
“Respondents [Justice Department lawyers] do not argue that petitioner should be entirely without remedy for an unconstitutional invasion of his rights by federal agents. In respondents’ view, however, the rights that petitioner asserts—primarily rights of privacy—are creations of state and not of federal law. Accordingly, they argue, petitioner may obtain money damages to redress invasion of these rights only by an action in tort, under state law, in the state courts. In this scheme the Fourth Amendment would serve merely to limit the extent to which the agents could defend the state law tort suit by asserting that their actions were a valid exercise of federal power: if the agents were shown to have violated the Fourth Amendment, such a defense would be lost to them and they would stand before the state law merely as private individuals. Candidly admitting that it is the policy of the Department of Justice to remove all such suits from the state to the federal courts for decision, respondents nevertheless urge that we uphold dismissal of petitioner’s complaint in federal court, and remit him to filing an action in the state courts in order that the case may properly be removed to the federal court for decision on the basis of state law.”
https://www.law.cornell.edu/supremecourt/text/403/388#fn4_ref
Did “the trial lawyers” come up with this idea, too? It would also put the federal officials on trial in federal court.
It’s a bad argument to use with me, I think the modern privacy precedents are wrong – “reasonable expectation of privacy” is made up bullshit, and I also hate the exclusionary rule which has largely birthed a general system of not having money damages against authorities violating constitutional rights in the process of criminal enforcement (because it makes more sense to let the criminal go free, or something?)
Bivens isn’t the first case that went the wrong way though, on that accounting. I’m not saying it’s easy to set up a constitutional tort system for going after federal agents in federal court, but the one that we have has so much bad precedent antecedent that I’m not in favor of it, let alone expanding it.
I think *Richard Nixon’s Justice Department* had a perfectly reasonable idea for dealing with abusive U. S. officials. If you think the Nixon administration was too harsh toward misbehaving federal employees, then the Overton Window is going to have to be moved to accommodate you.
Why do so few people see what a cop-out (heh) the exclusionary rule is? It helps you only if you’re guilty (in fact) of a crime, and its existence seems to provide an excuse to give no justice to the innocent. Not only that, but even in the criminal case it doesn’t set things back to where they’d be absent the intrusion; if something was seized from you as evidence that can’t be used, why don’t they give it back to you?
I think what’s gone on is that jurists grok a wrongness in criminal law (as do I), so they hobble its workings every chance they get, but can’t bring themselves to tear it down and start from scratch.
I agree. The Exclusionary Rule is the unholy offspring of the same leftist impulse that today has them (1) suing pharmaceutical manufacturers to limit the supply of the drug cocktail used to administer the death penalty in many states (2) throwing up endless redundant procedural mechanisms to prevent administration of the death penalty and (3) arguing that the ungodly expenses they created in 1-2 are a reason not to administer the death penalty. Bullets are cheap.
I’m not saying it’s just the left that tries to frustrate policies with which it disagrees, but there isn’t really an equivalent on the right in terms of the downside – it’s hard to argue that work requirements for welfare eligibility set murderers free.
Until such time as the numerous unjust victimless “crime” laws such as the drug laws, gun laws, tax laws, vice laws, regulatory laws, etc., etc., etc. are repealed and removed from the books, I want the violators i.e. victims of those laws to escape prosecution via the exclusionary rule or whatever. If that means some authentically bad people get away with real crimes, tough shit. If people want justice, let them repeal unjust laws.
*stamps foot* until I get the policies, I want enacted first NOBODY GETS JUSTICE
(Get it? You’re a child, unfit for self-government)
If good rules protect bad people, do bad rules protect good people?
The absence of rules protects good people.
They can, but at a lower rate than a good rule. Presumably, your criterion for what makes a rule good is similar to mine.
There should be some other penalty for government officials behaving badly. Just allowing lawsuits would invite nuisance suits and probably bog down the court system.
In this case, the officer should be arrested and tried for trespassing and assault. The people auditing the victim should also be tried. And of course, everyone should be fired
If we’re worried about nuisance suits, the first people to be protected should be the normies – the small businesspeople who don’t have taxpayer funding for their defense.
Also, we can think of using loser-pays for all cases.
Sounds right to me. However, I don’t trust Root’s framing here. Why was the agent there and was it within his jurisdiction and duty to question the man? Was Egbert the initiator of violence and the aggressor? Do we have proof that he got the IRS to audit Boule? I am ready to believe ICE and IRS agents are pieces of shit who abuse their authority, but I simply trust nothing of the narrow and selective facts Root chooses to report.
If things are as simple as he describes then charge the offenders for the assault, trespassing, and whatever statute is correct for prejudiced abuse of power. If these are objective abuses of authority then the agents need to be fired and policies updated to address it
The narrow and selective facts, I imagine, are from the plaintiff’s complaint. He wants the right to make his case before a jury, which will hopefully decide one way or another.
The Justice Dept’s position is that *even if* the defendant did all that shit, he shouldn’t be sued.
Ah. Yeah, I don’t like that argument. That should be shot down. I still want to know the verifiable facts of this case to understand to what extent which party(ies) acted inappropriately
So we should already know the facts and evidence of a case before we even decide if the guy is allowed to actually make a case with those facts and evidence in court?
there should be a penalty for LIARS like you Trolling on line.
The illegals dont have rights. Under our legal system, CRIMINALS FORFEIT THEIR RIGHTS.
The plaintiff is a *citizen* who wants the chance to prove his claims of warrantless searches and retaliatory IRS auditing.
If the plaintiff wins in the Supreme Court, it only means there will be a trial where the govt gets to present its side and a jury decides who’s telling the truth.
The government, right now, wants to stop any trial on the grounds that there’s no remedy *even if* the officer violated the rights of this particular citizen.
A nuisance suit is a suit that doesn’t survive a motion for dismissal. The courts already have a good way to deal with them. (And loser pays should definitely apply in that case).
If a case would get as far as a jury decision, it’s definitionally not a nuissance suit.
Judge Don Willett is correct. The rest of them shill for Leviathan.
How many cops have to die or disappear mysteriously before the rest flee?
Don’t know, but we are likely to find out the way things are going.
Is this like the Tootsie Pop question?
Put the “agent” up on a billboard. Show his face. State what he did. Nationally.
It works for missing children.
“Owner of local billboard audited for tenth strait year.”
yes. proclaim them HEROES for protecting US Soverignty you goddamn Communist!
Funny how Illegal Invaders get US Constitutional protection while obviously US Citizens are except… Shouldn’t that be the other way around!
It wasn’t the illegal immigrant’s rights in question, it was the property owner in whose place of business the federal agent was trespassing without a warrant. And then the whole IRS thing.
(Assuming the allegations are true)
lol… That’s what I get for skipping the article 🙂
“Funny” how few Reason readers agree with Reason writers. Damon must be wondering what the Hell happened to the army of strict constructionists he thought he was leading. Damon might have noted that it was the Court’s “true” conservatives–Scalia, Thomas, Alioto–who have been leading the charge against holding federal officers responsible for abuses of power. Gee, whatever happened to that whole “limited government” thing? It seems so “last year” somehow.
You’re confusing libertarians with conservatives.
The thing is if SCOTUS keeps going down the road of repealing Bivens all it will do is succeed in creating vigilantes who will seek extra-legal means of justice or recompense. In fact it’s already happening if the increase in police being ambushed since about 2007 is any indication. Are we coming to a tipping point?
…the point where you create false cause and effects to push a political agenda?
Yes were there.
The fucking ILLEGALS do not have Constitutional Rights so The Govt cannot infringe on them.
Reasons political agenda is clear… flooding the country with radical Democrat illegal aliens…
Once again, the plaintiff is a *citizen* who wants the chance to prove his claims of warrantless searches and retaliatory IRS auditing.
If the plaintiff wins, it means there will be a trial where the govt gets to present its side.
The government, right now, wants to stop any trial on the grounds that there’s no remedy *even if* the officer violated the rights of this particular citizen.
Everyone inside the US has US constitutional rights, silly.
Bivens should be overruled and the Federal Tort Claims Act amended to allow for constitutional torts to be brought against the federal government.
From the headline I thought this would be simple: we have no rights at the border. How far does this principle extend? To pursuit of a foreigner within 100 miles of the border? Was the owner wrongfully hindering a Border Patrol agent in the lawful performance of duty?
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