In a decision released last Wednesday, the Supreme Court ruled border patrol agents are entitled to blanket immunity because they work for the federal government.
The case, Egbert vs. Boule, was first brought up to the court after Innkeeper Robert Boule claimed Border Patrol Agent Erik Egbert violated his Fourth Amendment after an instance at Boule’s inn in 2014 where Egbert reportedly lifted him off the ground and threw him against an SUV while trying to check the immigration status of Boule’s guests.
The court’s ruling is not the first case where the Supreme Court has ignored claims of constitutional rights violations, but appears to be the first time it determined that (nearly) all federal officers are above the law because there is yet to be a specific law saying otherwise.
Egbert vs. Boule: What happened?
The case was brought to the Supreme Court by Robert Boule, a US citizen who owns a bed and breakfast near the Canadian border in the state of Washington.
On the day of the incident, Egbert reportedly stopped Boule in town to ask him about guests staying in his inn. In response, Boule stated two of his employees were currently picking up a guest who had just arrived from Turkey.
Once the guest arrived, Egbert proceeded to follow the guest’s car and approach it, asking about his immigration status. After Boule asked Egbert to leave, an argument commenced between the two where Egbert allegedly pushed Boule to the ground and then began to question his guest.
Boule proceeded to call 911, where more police officers showed up and confirmed Boule’s guest was lawful in the country.
After registering a complaint on the grounds of excessive force — which Boule suffered back injuries from — Egbert allegedly had the hotel audited by multiple state and federal agencies to punish Boule for these claims.
Despite retaliation from Egbert, Boule filed a lawsuit claiming Egbert’s use of excessive force against him was in violation of his First Amendment right while his entry onto private property, refusal to leave and use of physical force violated Boule’s Fourth Amendment rights. Eventually, the case was brought to federal court, yet despite efforts from Boule’s lawyers, the Supreme Court sided with the border agent in a 6-3 ruling.
The justification for the “lack of persecution” is that no court is “competent to authorize a damages action,” according to Justice Clarence Thomas.
The court asserted that it was impossible for the Border Patrol Agents to face a lawsuit under a First Amendment claim of retaliation and a lawsuit under the Fourth Amendment claim for the use of excessive force.
This was not the first time federal police have been “questionably” left off the hook
The Egbert vs. Boule case is just the most recent ruling where federal police have faced no charges, with similar cases appearing in court for years.
Back in 2017, a case was brought to the Supreme Court of a group of male non-US citizens from Muslim and Middle Eastern origins who were detained and treated as “persons of interests” following the September 11 attacks. In their case Ziglar vs. Abbasi, the group claimed they were unlawfully detained with no information as to why and exposed to excessive and harsh treatment; according to them, they were detained solely because they were Muslim and non-US citizens suspected of being terrorists.
After years of lengthy dismissals and appeals, the Supreme Court determined by a 4-2 vote that the unlawfully present aliens arrested in the immediate aftermath of the September 11 attacks were not able to file for a lawsuit based on their confinement and treatment received.
Years later in 2020, another case known as Hernandez vs. Mesa again failed to charge a federal officer with damages.
In the 2020 ruling, Sergio Adrián Hernández Güereca, a 15-year-old Mexican national, was playing with his friends along a cement culvert between the border of El Paso, Texas and Ciudad Juarez, Mexico, when Border Patrol Agent Jesus Mesa Jr. arrived and detained one of Hernández’s friends on U.S. territory.
Hernández ran into Mexico territory, where he was reportedly shot in the face and killed by Mesa from across the U.S border.
Despite Hernandez’s parents filing a lawsuit on grounds of violating their son’s First and Fourth Amendment rights, the U.S. Court of Appeals for the Fifth Circuit claimed the parents failed to show sufficient proof of a Fourth Amendment violation and that the officer was entitled to immunity because it was not clearly established that shooting someone across the Mexican border was “unconstitutional.”
Bivens vs. Six precedent routinely ignored
In deciding Herandez vs. Mesa and now Egbert vs. Boule, both cases attempted to justify the violation of rights under the precedent set up by the Bivens vs. Six in 1971.
This case was brought to the Supreme Court in 1965, after six agents of the Federal Bureau of Narcotics forced their way into Webster Bivens home where they reportedly searched the premise without a warrant, handcuffed his wife and children, arrested him and later subjected him to a strip search.
Bivens sued the agents for $15,000 in damages for humiliation and mental suffering first in a district court where it was dismissed and then in the Supreme Court where they later affirmed Bivens’ constitutional rights.
During the Hernandez vs. Mesa case, Hernandez’s parents repeatedly attempted to win on grounds similar to the Bivens case, yet were denied after the Fifth Circuit Court ruled the excessive force claim was unlike anything they had ever seen.
Likewise, the Supreme Court’s latest ruling on Egbert vs. Boule also failed to affirm the precedent under the Bivens case.
In attempts to receive compensation for the incident, Boule’s lawyers used Bivens’ precedent under the grounds that private citizens could sue a federal officer if their rights were violated.
Yet in writing for the majority, Justice Clarence Thomas mentioned that the two instances were not similar and that no Bivens cause of action for retaliation claims were brought by the First Amendment.
Justice Clarence further noted that only in rare circumstances are claims allowed to proceed without authorization from Congress and that they should not question lawmakers in deciding when individuals can sue for constitutional violations.
The Supreme Court, therefore, decided that it was not equipped to make such a decision and that Congress was in a better position to make a decision on “whether or not the public interest would be served by imposing damages to the individual.”
Others, including Egbert’s lawyer Sarah M. Harris, agreed with the Court’s ruling that stated the Constitution gives Congress the right alone to access damage actions and that the judicial system is un-equipped to do so.
Why is the Bivens case ignored so often?
The reasoning behind the latest trend of failed federal police lawsuits is quite simple — no law yet extends to federal police.
In 1871, Congress passed a civil rights statute which authorized constitutional lawsuits against state and local officials — yet one that failed to include federal judges.
For decades now, cases of federal police lawsuits have been thrown out the window, despite the Bivens case, because no law yet exists that allows people to claim constitutional violations against federal police.
In fact, several Supreme Court justices even expressed disagreement with the precious Biven’s ruling.
When deciding on whether to apply Bivens to the Hernandez vs. Mesa case, the five Republican judges in the majority concluded that it was “doubtful that we would have reached the same result” if Bivens were “decided today” — hinting that at some point, one of the only rulings that have convicted a federal officer and allow individuals to sue federal officers could be overturned.
The court further states it is not allowed to authorize such damages to federal officers, claiming that only Congress is allowed to do so. But according to USA Today, between the nation’s founding and the early 20th century, courts have indeed applied damages to federal judges before without this congressional approval.
“Awarding individual damages for federal officer misconduct has long-standing roots dating back to the founding and remains appropriate, albeit more limited, today,” Boule’s attorney, Felicia H. Ellsworth argued.
On the other hand, judges like Justice Samuel Alito blatantly don’t agree with convicting federal officers for violating constitutional rights under Bivens in an effort to protect border patrol agents’ jobs — which in his words requires aggressive actions for national security reasons.
“Since regulating the conduct of agents at the border unquestionably has national security implications,” Justice Alito wrote, “the risk of undermining border security provides reason to hesitate before extending Bivens into this field.”
Clearly, the Supreme Court seems wary of interfering with federal matters, especially one that would change law, yet it remains evident that some type of law extending lawsuits of constitutional matters to federal officers must be applied by Congress — or else it will continue to set the precedent in America that law enforcement is above the law.
Editor’s Note: The opinions expressed here by Impakter.com columnists are their own, not those of Impakter.com — In the Featured Photo: Border Patrol agents from the McAllen station horse patrol unit on patrol on horseback in South Texas on September 25, 2013. Source: Photographer: Donna Burton, Wikimedia.
