Access to Justice

Supreme Court Again Raises Barrier to Sue Law Enforcement

The US Supreme Court further weakened a judge-made doctrine meant to hold federal law enforcement and other officials accountable for violating constitutional rights.

In a 6-3 decision on Wednesday, the justices stopped short of overturning the 50-year-old rule stemming from its decision in Bivens v. Six Unknown Fed. Narcotics Agents. That ruling inferred the ability to sue federal officials for alleged constitutional violations.

But the conservative-majority court has now again reaffirmed its previous characterization of Bivens actions as outdated and its reluctance to extend them to new contexts.

The justices have “declined 11 times to imply a similar cause of action for other alleged constitutional violations,” Justice Clarence Thomas wrote for the court.

The court’s “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,” Thomas said.

Although Bivens still stands, it isn’t clear what, if any, cases will survive the court’s reasoning in Wednesday’s case, Egbert v. Boule.

The “crabbed standard made up by the majority makes it incredibly difficult to hold federal officers accountable even for the most egregious constitutional violations,” said Constitutional Accountability Center Civil Rights Director David Gans.

The center filed an amicus brief urging the justices to allow a Washington state innkeeper’s excessive force claims against a US Border Patrol agent to go forward.

Robert Boule alleged the border agent pushed him to the ground in 2014 during a dispute and then retaliated by reporting him to the IRS after he complained to the agent’s supervisors. Boule later sued, alleging excessive force and illegal retaliation.

Justice Sonia Sotomayor, joined by Stephen Breyer and Elena Kagan, said the ruling “closes the door to Bivens suits by many who will suffer serious constitutional violations at the hands of federal agents.”

The ACLU’s Cecillia Wang noted that the US Customs and Border Protection is “by far the largest federal police agency” and “claims special warrantless search and seizure powers within 100 miles” of the US boarder—an area where some 216 million Americans live. The ACLU also filed a brief in support of Boule’s claims.

Smuggler’s Inn

In recent cases, the court “indicated that if we were called to decide Bivens today, we would decline to discover any implied causes of action in the Constitution,” Thomas said.

As such, all nine justices agreed that allowing Boule to move forward on the First Amendment retaliation claim would extend Bivens to a new context and that it should be dismissed.

Boule, who operated a bed and breakfast on the US-Canada border called the Smuggler’s Inn, argued that he should still be allowed to press his excessive force claim under the Fourth Amendment because that was the exact claim at issue in Bivens.

But the majority said the national security implications of allowing suits against border patrol agents counseled against moving the case forward in federal courts without express authority from Congress.

“A court faces only one question: whether there is any rational reason (even one) to think that Congress is better suited to weigh the costs and benefits of allowing a damages action to proceed,” Thomas said.

‘Restless’ New Court

Sotomayor accused the majority of rewriting recent caselaw that called for a more robust—though still difficult to overcome—look into the circumstances underlying the claim before deciding whether it should move forward.

“Just five years after circumscribing the standard for allowing Bivens claims to proceed, a restless and newly constituted Court sees fit to refashion the standard anew to foreclose remedies in yet more cases,” Sotomayor said.

She acknowledged that the court’s reasoning “will make it harder for plaintiffs to bring a successful Bivens claim, even in the Fourth Amendment context,” but urged lower courts not to read the decision as rendering “Bivens a dead letter.”

Athul Acharya, who founded the public interest law firm Public Accountability, says there’s still a lot of work for Bivens to do, particularly in drug cases like Bivens itself. “The FBI, DEA, and ATF do a significant amount of domestic policework under their narcotics-interdiction mandates,” so cases challenging those federal officers—as opposed to border patrol ones—will probably survive, Acharya said.

Writing for himself in an opinion concurring with the outcome, Justice Neil Gorsuch urged the court to once and for all bury Bivens claims, saying that the court should do explicitly what it appears to be doing implicitly.

“Sometimes, it seems, this Court leaves a door ajar and holds out the possibility that someone, someday might walk through it even as it devises a rule that ensures no one ever will,” Gorsuch said. “In fairness to future litigants and our lower court colleagues, we should not hold out that kind of false hope.”

The case is Egbert v. Boule, U.S., No. 21-147.

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