The Supreme Court on Wednesday made it even more difficult for U.S. citizens to bring lawsuits against federal employees who violate their constitutional rights, narrowing the already limited path to do so.
In Egbert v. Boule, the conservative majority on the court ruled an individual business owner did not have cause to bring an action seeking damages against a federal agent accused of physically assaulting him. The ruling set a broad precedent that legal experts said would make it virtually impossible to sue federal officials.
The case involved Richard Boule, who owns the Smuggler’s Inn, a bed and breakfast near the U.S.-Canada border in Washington. Boule worked as an informant for Customs and Border Protection, occasionally facilitating transportation and lodging for undocumented immigrants and subsequently reporting them to federal officers. In 2014, a scuffle took place between Boule and a Border Patrol agent, Erik Egbert. Boule had informed Egbert of a potential undocumented immigrant arriving at his inn, but Boule resisted when Egbert came to investigate and the agent allegedly pushed the inn owner to the ground.
Egbert allegedly then reported Boule to the Washington Department of Licensing for his “SMUGLER” license plate and to the Internal Revenue Service, which prompted an audit. Boule eventually sued Egbert for a Fourth Amendment excessive use of force violation and a First Amendment unlawful retaliation violation.
At the federal level, individuals can sue officials for violating their rights after the Supreme Court case Bivens v. Six Unknown Named Agents. The precedent created a high threshold, however, and courts frequently—and increasingly—deny plaintiffs the ability to sue. In Egbert, the court held unanimously that Boule did not have a Bivens case on his First Amendment claim. The three liberals dissented from the majority in part, arguing Boule should have been able to bring his excessive force claim. The decision reversed the finding from the U.S. Court of Appeals for the Ninth Circuit.
In the majority opinion written by Justice Clarence Thomas, the court said interfering with the conduct of Border Patrol agents by allowing claims of constitutional violations to proceed would damage national security and the court system is not equipped to assess damages against federal personnel. It also noted Boule had an alternative path to submit his grievance by filing a Federal Tort Claims Act case with CBP. The agency denied Boule’s claim and took no action against Egbert.
Alex Reinart, director of the Center for Rights and Justice at Yeshiva University’s Cardozo School of Law and an expert on Bivens, said the decision in Egbert will make it harder than ever for individuals to bring claims of damages against federal officers. Each element of the decision made the process more defendant friendly, he explained.
“Border Patrol officers, no matter what they’re doing, aren’t going to be held accountable under Bivens,” Reinart said. “It has made it even harder to hold officers accountable for violations of the Constitution.”
In a concurring opinion, Justice Neil Gorsuch said the majority should have gone further and overturned the Bivens precedent altogether. The courts will never be positioned to weigh whether a plaintiff has a cause of action against a federal official and by leaving the door ajar, the court is creating a “false hope” for future litigants.
In her dissent, Justice Sonia Sotomayor said the new precedent created by the majority essentially already overturned Bivens, as it strips those who “suffer injuries at the hands of other federal officers…of an important remedy.” Sotomayor took issue with the majority’s suggestion that Boule had an alternative opportunity for justice, noting it was a “nonbinding administrative investigation process, internal to the agency and offering no meaningful protection of the constitutional interests at stake.” She added the claim of national security was “sheer hyperbole” and the case, at its core, concerned “a physical assault by a federal officer against a U. S. citizen on U. S. soil.”
“The consequences of the court’s drive-by, categorical assertion will be severe,” Sotomayor said. “Absent intervention by Congress, CBP agents are now absolutely immunized from liability in any Bivens action for damages, no matter how egregious the misconduct or resultant injury.”
Democrats in both chambers put forward legislation to intervene last year, introducing the Constitutional Accountability Act (H.R. 6327) to enable individuals to sue both the federal government and federal law enforcement employees for constitutional violations. The legislation would give individuals a statutory right to bring cases against feds who violated their constitutional rights, rather than having to prove a “cause of action” before a court. It has yet to receive any action, however.
Reinart said that while individuals still technically can bring claims against federal officers through the FTCA process, said the new reality is an “extremely limited ability to enforce constitutional rights.”
“It would be great if federal officials did not violate the Constitution but that’s not the case,” Reinart said. “Federal officials violate the Constitution all the time.”