The U.S. Supreme Court heard oral arguments yesterday in a case that asks whether a U.S. citizen who was allegedly victimized by the unconstitutional actions of a federal Border Patrol agent may sue that agent for damages in federal court. Alas, it looks like the agent has a good chance of prevailing over the citizen.
The case is Egbert v. Boule. It centers on the application of a 1971 Supreme Court precedent, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, which allowed a man to sue federal drug cops for using excessive force against him in violation of the Fourth Amendment.
Egbert v. Boule also involves an excessive force complaint against a federal officer. Indeed, the case is materially much the same as Bivens. Yet the Supreme Court has effectively abandoned Bivens in recent years, narrowing the precedent's reach to the point of practically overruling it. When a Bivens claim arises in a context that is "different in a meaningful way from previous Bivens cases decided by this Court," the Supreme Court said in Ziglar v. Abbasi (2017), the presiding judge must search for any "special factors counselling hesitation" and dismiss the suit against the federal officer if he finds them. "If we have reason to pause before applying Bivens in a new context or to a new class of defendants," the Court said in Hernandez v. Mesa (2020), "we reject the request."
In other words, despite the fact that Bivens allowed a Fourth Amendment excessive force lawsuit against federal drug cops to proceed, the Supreme Court's more recent rulings suggest that it will not allow a Fourth Amendment excessive force lawsuit to proceed against a federal Border Patrol agent, since that might count as a "new context" or a "new class of defendants."
Justice Clarence Thomas spelled that out succinctly in his opening question to Felicia Ellsworth, the lawyer representing Robert Boule in his attempt to sue the federal officer who allegedly shoved him to the ground and injured his shoulder. "Aren't you up against the fact," Thomas said, "that we have declined to apply or extend Bivens in recent history? We've almost universally declined to expand it."
Justice Sonia Sotomayor seemed more willing to give Bivens a chance in the present case. "The issue here was excessive force," she told Sarah Harris, the lawyer representing the Border Patrol agent, Erik Egbert. "And I thought that the person making the claim was a U.S. citizen. And, in Bivens," she continued, "it was an excessive force claim in…a private home. Here, it's an excessive force claim on the property of an inn owned by a U.S. citizen." What possible reason, Sotomayor effectively asked, do we have for allowing a federal agent to be sued in one case but not in the other?
It's a good question. Unfortunately, there's a good chance that Sotomayor will soon be asking it in a dissenting opinion.