Supreme Court Holds Private Citizens Can’t Sue Border Patrol for Damages in Excessive Force Claims

Supreme Court Holds Private Citizens Can’t Sue Border Patrol for Damages in Excessive Force Claims
Supreme Court Justice Clarence Thomas at the Supreme Court building in Washington on June 1, 2017. (Jonathan Ernst/Reuters)
Matthew Vadum

A U.S. Border Patrol agent in Washington state cannot be personally sued in the federal court system for damages resulting from a claim of illegal retaliation and excessive force made by a private citizen, the Supreme Court ruled in a unanimous decision on June 8.

The Biden administration argued that the threat of liability would interfere with Border Patrol agents doing their jobs. The Supreme Court agreed, overturning a decision of the often-reversed U.S. Court of Appeals for the 9th Circuit that had allowed the lawsuit to move forward.

The opinion (pdf) in Egbert v. Boule, court file 21-147, was written by Justice Clarence Thomas. Oral arguments were heard on March 2.

The justices ruled 9–0 that a Border Patrol agent couldn’t be sued for a retaliation claim under the First Amendment, and held 6–3 that the agent couldn’t be sued for excessive use of force under the Fourth Amendment. Justice Neil Gorsuch filed a separate opinion concurring with the judgment of the court. The three liberal members of the court dissented on the excessive use of force claim.

The case concerns the half-century-old Bivens Doctrine, which shields federal agents from legal liability for actions performed in the course of their work. In Bivens v. Six Unknown Named Agents (1971), the Supreme Court recognized a cause of action under the U.S. Constitution for damages against Federal Bureau of Narcotics agents for violations of the Fourth Amendment. The bureau, founded in 1930, was a forerunner of today’s U.S. Drug Enforcement Agency.

During a smuggling investigation at the ironically named Smuggler’s Inn Bed and Breakfast in Blaine, Washington, which sits just feet from the Canadian border, U.S. Border Patrol agent Erik Egbert allegedly injured innkeeper Robert Boule. Boule had previously been a paid government informant whose tips led to multiple arrests of his guests; he had also been charged by Canadian authorities with human trafficking, but the charges were eventually thrown out.

In March 2014, Boule tipped off Egbert about a Turkish citizen who would be arriving at his establishment later that day. Egbert suspected the Turkish man might be planning criminal activities and waited for him to arrive. When the man showed up in a car, Boule asked Egbert to leave the property, but the agent refused and stood between the car and the man. Egbert allegedly pushed Boule to the ground and then confirmed the Turkish man was lawfully present in the United States.

Boule sought medical treatment for a back injury he claimed Egbert caused him, and complained to Egbert’s superiors. Boule alleged that Egbert then retaliated by reporting Boule to the IRS, claiming tax evasion by Boule, which led to the agency investigating and auditing Boule.

Boule sued Egbert in federal district court in a so-called Bivens action, claiming his constitutional rights were violated. That court ruled in favor of Egbert, but a fractured U.S. Court of Appeals for the 9th Circuit reversed, finding for Boule.

Thomas wrote for the court that there was no need to expand the reach of the Bivens precedent in retaliation claims.

Enlarging the Bivens Doctrine could “entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties,” Thomas wrote, citing Anderson v. Creighton (1987).

He added such an expansion would “pose an acute risk of increasing such costs. A plaintiff can turn practically any adverse action into grounds for a retaliation claim.”

Even a frivolous retaliation claim “threaten[s] to set off broad-ranging discovery in which there is often no clear end to the relevant evidence,” Thomas wrote, citing Nieves v. Bartlett (2019).

“[A] court is not undoubtedly better positioned than Congress to create a damages action,” he wrote.

Justice Sonia Sotomayor filed an opinion concurring with part of the judgment and dissenting with another part, in which Justices Stephen Breyer and Elena Kagan joined.

“Today’s decision does not overrule Bivens,” Sotomayor wrote.

“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.”