A Federal Agent Allegedly Violated the Constitution. SCOTUS Will Decide If He Can Be Sued for It.
The justices heard oral arguments this week in Egbert v. Boule.
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.
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Sued? Why not arrested and tried?
Sotomayor’s big plus on the bench is her support of the 4th. Thomas’ adherence to not expanding the 1971 ruling makes it seem like no ruling will ever go against the government, or no new cases in the matter of technology could ever be heard. A head scratcher.
Why is the Supreme Court so set on not just maintaining QI, but expanding it to the point that no federal agent can ever be sued? It makes no sense to be such boot-licking ostriches. Sometimes I wonder if they are just incredulous that Congress hasn’t stepped up to the plate, double dog daring them to do their job, and by now they’ve got so much face invested in immunity that they don’t dare say “just kidding!”.
didn’t we already do the “SC is the watchdog of the government not of Us” meme today?
“A Federal Agent Allegedly Violated The Constitution…” WHOA!!!! You can stop right there, cuz I ain’t buying what you’re selling! (Who ever heard of such?!)
Why is it that ordinary US citizens (ie peons) are liable and responsible for violations of even the most obscure and contradictory rules and laws (see EPA/DER water regulations) but police officers, who deal with a pretty well defined subset of rules and laws, often in a repetitive manner are not liable for even the most egregious violations of those same rules and laws that they receive training on? I realize that most people will think that this is a rhetorical question but I pose it in earnest.
Because we’ve let them get away with it, the water is starting to move, and the frog is starting to wonder why it’s getting so damned warm in this pot.
Amendment 4 – Search and Seizure
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Holy shit!
If our stretching of the law puts “excessive force” anywhere near what is outlined in this simple sentence, we’ve strayed far into a never-never land of Constitutional jurisprudence.
Maybe the 8th, but the 4th?
The 8th applies to punishments, which in our system of law come AFTER A TRIAL AND CONVICTION. If what the federal officer did (BEFORE TRIAL) was a punishment, that violates the 5th Amendment (“nor be deprived of life, liberty, or property, without due process of law”) and turns the legal system on it’s head. But the courts are too cowardly to recognize when this happens and apply the appropriate remedies – not civil suits, but appointing a special prosecutor and sending the agent and usually his superiors to prison for civil rights violations. So they mess around with penumbras of the 4th instead.