Warning Border Patrol in This Area

Legal Battle Ends with Federal Agent ‘Above the Law’

The Supreme Court has decided that Robert Boule will see no monetary compensation for the illegal trespass, assault, and retaliation of a U.S. Border Patrol agent. This ruling has come just months after the April 2022 ruling in favor of Larry Thompson’s right to monetary damages due to the violation of his Fourth Amendment rights.

Boule owns the Smuggler’s Inn, a bed-and-breakfast located on the Washington state and Canada border. Officials have accused the inn of being a hotbed for illegal smuggling activity that includes the trafficking of drugs, money, and people. Boule has been accused of assisting in the illegal border-crossing. (In Canada, he plead guilty to illegally helping people into the country.)

In 2014, a border patrol agent named Erik Egbert was informed by Boule that a man from Turkey would be staying at the inn. Concerned that the man was in the country illegally, Egbert waited until the man arrived and then proceeded to follow him onto the property.

Boule, knowing his rights, stopped Egbert and told him to leave and come back with a warrant. Egbert then allegedly picked Boule off the ground, threw him against a vehicle, and then on the ground. Egbert proceeded to question the Turkish man. After determining that he was in the country legally, he left. The incident left Boule with an injured back that required medical treatment.

Angered by the way he was treated, Boule filed a complaint with Egbert’s supervisors. Boule says that Egbert retaliated by reporting him to the IRS, Social Security Administration, Washington Department of Licensing and the county tax assessor’s office, leading to a number of legal and financial issues, such as the IRS launching a years-long audit.

Feeling that Egbert had clearly violated his rights, Boule sued him under Bivens, the 1971 Supreme Court ruling that allows claims for money damages against federal agents that violate an individual’s constitutional rights. Unfortunately, since the Bivens decision, the Court has put in place a number of precedents that have weakened its effectiveness, effectively turning a federal official’s qualified immunity (protects government officials from frivolous lawsuits) into a shield that completely prevents any type of accountability.

Boule’s claims stated that Egbert’s use of excessive force had violated his Fourth Amendment right and his retaliation after Boule had filed a complaint was a violation of his First Amendment right.

After both claims were dismissed by the district court, the U.S. Court of Appeals reversed both decisions, allowing the claims to go forward. Egbert, unhappy with the ruling, appealed to the Supreme Court.

The Supreme Court determined that Boule could not seek damages under Bivens for the violation of his constitutional rights by a federal agent because Bivens does not extend to create causes of action – facts sufficient to justify suing to obtain money or property, or to justify the enforcement of a legal right against another party – for Boule’s Fourth Amendment excessive-force claim and First Amendment retaliation claim.

Because both claims presented “new context” (different than previous cases where the Court applied Bivens cause of action) the Court refused to create new cause of action, instead deeming that the power of Congress. Additionally, the Court determined that permitting suit against a U.S. Border Patrol agent creates national security concerns that prevent Bivens relief.

So, what does this mean for police accountability? Unfortunately, it is just another case in a long line of failed attempts to hold federal agents accountable for their actions.

Ashcroft v. al-Kidd, the Supreme Court determined that U.S. Attorney General John D. Ashcroft could not be sued due to the wrongful detention of Abdullah al-Kidd.

Saucier v. Katz, the Supreme Court ruled that military officer Saucier was entitled to qualified immunity in a case that saw him use excessive force on protester Elliot Katz.

Hernandez v. Mesa, the Supreme Court denied claims centered around a 2010 shooting of a Mexican teenager, Sergio Adrián Hernández Güereca, by a U.S. Border Patrol Agent.

In her dissenting opinion, Justice Sotomayor shares her concern for what a ruling like this could mean for the future:

“Today’s decision does not overrule Bivens. It nevertheless contravenes precedent and will strip many more individuals who suffer injuries at the hands of other federal officers, and whose circumstances are materially indistinguishable from those in Bivens, of an important remedy.”

Bivens gave American citizens a way to seek justice for the illegal actions of federal agents. Moreover, it provided a way to deter the unconstitutional acts of officers. The consistent weakening of Bivens over the last 50 years has led to a nation demanding change. No one should be “above the law,” and the only way to effectively hold federal officials accountable is by removing qualified immunity altogether and allowing an individual that has been denied their constitutional rights a way to seek compensation.


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