A divided Supreme Court on Wednesday sided with a Border Patrol agent accused of using excessive force during a confrontation, an outcome that will further limit lawsuits against law enforcement officials accused of constitutional violations.
Justice Clarence Thomas, writing for the majority, said that in rare instances such claims had been allowed to proceed without explicit authorization from Congress and that the court should not second-guess lawmakers responsible for deciding when individuals can seek damages for constitutional violations.
“Because our cases have made clear that, in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts, we reverse,” wrote Thomas, who was joined by Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Brett M. Kavanaugh and Amy Coney Barrett.
Justice Neil M. Gorsuch wrote separately agreeing with the judgment.
In dissent, the court’s three liberal justices said they would have allowed the Washington state man’s lawsuit to proceed against the federal agent. Justice Sonia Sotomayor wrote that the court had “absolutely immunized from liability” thousands of Border Patrol agents “no matter how egregious the misconduct or resultant injury.”
Such cases “play a critical role in deterring unconstitutional conduct by federal law enforcement officers,” wrote Sotomayor, who was joined by Justices Stephen G. Breyer and Elena Kagan.
The case was brought in 2017 by Robert Boule, who owned the Smuggler’s Inn, a bed-and-breakfast located in Washington state along the Canadian border. Boule had a complicated relationship with federal agents, according to the court’s opinion. He sometimes served as a paid, confidential informant, helping agents identify people crossing the border illegally near his property. He also provided lodging and shuttle service to those crossing illegally, driving a black SUV with the license plate “SMUGLER.”
Agents had seized from the inn shipments of illegal drugs, the opinion states, and Boule was recently convicted in Canadian court on human trafficking charges.
Boule sued a Border Patrol agent whom he accused of unlawfully entering his property, and shoving and pushing him to the ground during a 2014 encounter involving a guest of Boule’s from Turkey. The agent, Erik Egbert, checked the guest’s immigration papers, which were up-to-date, and the guest unlawfully crossed the border into Canada that evening, the court’s opinion states. Boule alleged that the agent violated his constitutional rights by using excessive force and retaliating against Boule for complaining to the agent’s superiors.
Central to the case is a 1971 ruling in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics in which the Supreme Court recognized that federal officers can be sued in some instances, even if such lawsuits had not been explicitly authorized by Congress.
But since then, the court has moved to restrict when individuals can bring such federal lawsuits. Two years ago, a divided court ruled that the family of a Mexican teenager killed by a Border Patrol agent in a cross-border shooting could not sue in U.S. courts. Before that, the court said in 2017 that senior U.S. government officials cannot be held liable for the alleged unconstitutional treatment of noncitizens detained after 9/11.
Sotomayor wrote in her dissent that the majority on Wednesday had rewritten and stretched its own legal standard “beyond recognition” to “close the door to Boule’s claim.” The conduct at issue, she noted, took place on U.S. soil and the injury was to a U.S. citizen.
“This case does not remotely implicate national security,” she wrote, adding that “Congress has not provided that federal law enforcement officers may enter private property near a border at any time or for any purpose.”
But Thomas said the reasoning in earlier decisions involving national security applies to Boule’s case because the Border Patrol agent was carrying out his duty to stop people from illegally entering or leaving the United States. Boule, he said, had other ways to address his concerns about the agent’s conduct and noted that he had filed a complaint that led to a year-long internal investigation.
The majority stopped short of overruling Bivens, but Gorsuch wrote separately to emphasize that the court should not leave the false impression that future claims will be viable.
“Weighing the costs and benefits of new laws is the bread and butter of legislative committees. It has no place in federal courts charged with deciding cases and controversies under existing law,” he wrote.
The court’s decision reverses a unanimous ruling from a three-judge panel of the U.S. Court of Appeals for the 9th Circuit.
Egbert’s lawyer argued that allowing Boule’s claims would undermine the ability of Border Patrol agents to engage in searches as part of their immigration-enforcement responsibilities. The Biden administration backed the agent’s position.
Steven A. Engel, an attorney who filed a brief in support of Egbert on behalf of former U.S. attorneys general from Republican administrations, said the court got it right.
“The plaintiff here could not point to any federal statute authorizing his suit, and the Court thus properly reaffirmed the constitutional principle that the power to create such legal remedies rests with Congress,” Engel said in an email Wednesday.
Boule’s attorney did not immediately respond to a request for comment. In court filings, Boule said his claims did not raise national security or immigration concerns and simply sought to address the misconduct against him.
The case is Egbert v. Boule.