Robert Boule owns, operates, and resides in a small bed-and-breakfast in Blaine, Washington. In March 2014, Erik Egbert, a U.S. Border Patrol agent, entered Boule’s property without a warrant to investigate a guest staying at Boule’s establishment.  After entering the property, Egbert assaulted Boule, causing him to sustain back injuries requiring medical attention. After Boule complained of Egbert’s abuse of power, Agent Egbert retaliated against Boule by causing the Internal Revenue Service and other federal and state agencies to open investigations against Boule. Boule then sued Egbert for damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, a case that allows individuals to seek monetary compensation from federal officials who have violated their constitutional rights. The district court granted summary judgment to Egbert on the ground that Bivens had not previously been applied to border patrol agents. The Ninth Circuit reversed, holding that the action being brought against Egbert is indistinguishable from countless other claims legitimately brought against federal law enforcement officials under Bivens. The Supreme Court agreed to review the ruling, and CAC filed an amicus brief, urging the Court to affirm the decision.

Our brief made three main points.

First, our brief explained that the Framers drafted Article III to establish a federal judiciary with broad powers to enforce the Constitution’s limitations on government power. The judiciary thus performs an essential checking function on the political branches of government, ensuring compliance with the Constitution’s protection of individual rights. This sweeping grant of judicial authority was incorporated into Article III against the backdrop of a common law tradition that recognized that legal rights are meaningless if individuals lack the ability to go to court to obtain a remedy when a right is violated. The Supreme Court in Marbury v. Madison affirmed this understanding when Chief Justice Marshall famously proclaimed that an indisputable rule of our constitutional system is that “where there is a legal right, there is also a legal remedy.”

Second, our brief demonstrated that the Framers viewed civil damages actions—the very kind of suit permitted under Bivens—as the quintessential method of ensuring that government officers respect the limits that the Fourth Amendment places on their authority. As our brief explained, the Framers’ understanding of the guarantee against unreasonable searches and seizures was shaped by a host of foundational English cases decided in the 1760s in which juries awarded tort damages to individuals whose homes were invaded or whose papers were searched by the King’s officers. These cases demonstrated to the Framers that civil actions for damages were an essential method of protecting individual liberty and limiting the abuse of power. Consistent with this history, American courts of the early Republic vindicated constitutional rights through common law tort actions, such as trespass and malicious prosecution. Although Egbert insists that only Congress can create damages actions, our judiciary has permitted awards against federal officers under non-statutory common law claims since its Founding.

Lastly, our brief showed why a Bivens action is appropriate in this case. Boule’s case, like Bivens itself, involves the historic remedy for violation of constitutional guarantees by law enforcement officials—the civil damages remedy affirmed by the Founding generation and applied by the courts throughout our history. Enforcing the nation’s criminal laws, of course, is critically important work, but since the beginning of the American republic, federal law enforcement officers have been subject to suit when they violate constitutionally guaranteed rights, and there is no compelling reason to carve out an exception from this critical rule of constitutional accountability for Egbert.

On June 8, 2022, in a 6-3 ruling, the Supreme Court held that the Bivens cause of action does not extend to Boule’s Fourth Amendment excessive-force claim or his First Amendment retaliation claim. Justice Sotomayor, joined by Justices Breyer and Kagan, wrote an opinion concurring in part and dissenting in part that explained that the Court’s precedents recognize that suits for damages play a critical role in ensuring that those whose constitutional rights have been violated receive meaning redress. The conservative majority’s decision ignores those precedents, as well as constitutional text and history. In doing so, it allows one of the world’s largest law enforcement forces to violate constitutionally guaranteed rights with impunity, striking a severe blow to constitutional accountability and the rule of law.