Supreme Court considers whether federal police may be sued for excessive force in 2014 case against a Border Patrol agent

By Emma Tucker, CNN

The US Supreme Court is considering a case that could change the broad immunity from prosecution federal officers have while performing their duties.

The case stems from a 2014 incident that began in a car, parked in the driveway of a bed-and-breakfast in Washington state near the Canadian border. A US Customs and Border Patrol (CBP) agent named Erik Egbert entered the driveway of the Smuggler’s Inn in Blaine without a warrant, to investigate a guest who was staying at the property, according to the lawsuit originally filed in district court.

Robert Boule, the owner of the inn, intervened, telling the agent that he did not have permission to inspect the guest and instructed him to leave the property. The agent “demanded” the guest exit the vehicle, but Boule refused his request, according to the lawsuit.

Then, Boule claimed, Egbert shoved him into the side of the vehicle and onto the ground, resulting in several injuries to his shoulder and back, which led to “lack of mobility, pain and suffering, emotional distress and loss of enjoyment of life,” the lawsuit states.

Boule sued the federal officer in district court, which granted summary judgment in favor of Egbert, dismissing the case against him. The US Court of Appeals for the 9th Circuit reversed the decision. Egbert then appealed to the Supreme Court, which granted review of the case.

The Supreme Court heard arguments in Egbert v. Boule on Wednesday, taking up the fundamental question of whether federal police officers may be sued for excessive force in violation of the fourth amendment and retaliating against an individual for complaining about an incident in violation of the first amendment.

A section of the Civil Rights Act of 1871, now generally known as Section 1983, allows citizens to sue state and local government officials and employees, excluding federal law enforcement, for compensatory damages for violations of their fourth amendment rights.

Claims such as Boule’s in his case against Egbert can be filed in the Supreme Court pursuant to Bivens v. Six Unknown Named Agents, a 1971 case in which the high court decided individuals can seek monetary damages for a violation of constitutional rights.

Supreme Court debates question of excessive force

During the proceedings Wednesday, Chief Justice John Roberts addressed a key issue in the case, which is whether Congress alone should have the power to create damages actions in cases involving federal officers.

Associate Justice Clarence Thomas noted the high court has almost “universally declined” to expand the Bivens case with additional claims into “new contexts.”

Boule’s claim of retaliation by Egbert in violation of his first amendment rights has never been recognized in a previous Bivens claim.

“But aren’t you up against the fact that we have declined to apply or extend Bivens in recent history?” Thomas asked Boule’s attorney, Felicia Ellsworth.

In response, Ellsworth said “we don’t think this is a new context,” adding the incident involved an “unlawful entry without a warrant, and this is excessive force on private property against a US citizen on domestic soil.”

Egbert’s attorney, Sarah Harris, told the judges if the court were to allow a Bivens claim in this case, it would result in having “the prospect of liability hanging over officers’ heads.”

Associate Justice Sonia Sotomayor raised the question of whether excessive force claims apply differently to law enforcement officers in different federal agencies.

“I thought that none of them constitutionally can use excessive force,” Sotomayor said.

Agent’s actions ‘done intentionally,’ claim stated

The lawsuit, filed by Boule in 2017, alleged Egbert was told by his superiors not to enter the property without permission except in an emergency, but he did so without probable cause.

Boule accused Egbert of searching the vehicle and reviewing the guest’s passport, which included a valid visa, and using excessive force that caused his injuries in violation of his fourth amendment rights, the claim said.

Boule claims he suffered retaliation “instigated” by Egbert after he complained to the agent’s Border Patrol superiors, who investigated and disciplined the agent for misconduct. This accusation represents Boule’s first amendment complaint, alleging retaliation that violated his right to free speech.

Egbert’s actions in violating Boule’s constitutional rights, the claim said, “were done intentionally, maliciously, wantonly, oppressively, and/or with reckless indifference” and were in breach of his duty of “reasonable care” of individuals mandated by state law.

In a statement as part of his declaration, Egbert denied the accusations made against him, saying he “didn’t do any of these things or engage in any retaliation against Mr. Boule.”

CNN has contacted attorneys for Boule and Egbert for comment but has not received a response.

Cecillia Wang, deputy legal director of the American Civil Liberties Union Foundation, said in a statement to CNN: “By statute, CBP has broad powers to make warrantless arrests, which CBP says applies within 100 air miles not just of the Mexican and Canadian borders, but all our coastlines; an area covering over 65 percent of the US population. It would be a disaster for all of our constitutional rights to give Border Patrol agents what they’re seeking here.”

Attorney Steven Engel, who filed an amicus brief in the case on behalf of former US attorneys general, including Bill Barr, said in a statement the high court has “repeatedly” determined over the past 40 years it is the job of Congress to decide when someone may seek damages for constitutional violations by federal agents.

Engel said Boule’s case, which was not approved by Congress, “gives the Court the chance to reaffirm the constitutional principle that the power to create legal remedies rests solely with Congress.”

However, a non-profit organization that says it seeks to fulfill the “progressive promise” of the Constitution believes Egbert should be held accountable for the actions he is accused of by Boule.

“If the Court holds that federal border guards cannot be sued, even for flagrant constitutional violations, it will allow one of the world’s largest law enforcement forces to violate constitutionally guaranteed rights with impunity,” said David Gans, director of the human rights, civil rights & citizenship program at the Constitutional Accountability Center.

“That would strike a severe blow to constitutional accountability and the rule of law,” he said.

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