What's at Stake
Whether a damages remedy should be available when a federal agent violated the plaintiff’s First and Fourth Amendment rights by entering private property without a warrant, throwing the plaintiff to the ground without justification, and then retaliated against him for exercising his right to seek redress from the government.
When a federal agent violates a person’s constitutional rights, what can courts do to provide justice? Sometimes, courts can issue orders like injunctions stopping future illegal actions. But that does not always provide an adequate remedy: If an officer injures or kills a person without justification, for example, the damage is already done. The traditional and, sometimes, only court remedy is “money damages,” meaning an order that the government agent pay for the harm they caused, just as a reckless driver has to pay for resulting injuries. And for over 50 years the Supreme Court has made clear that money damages are available when against federal agents when they violate constitutional rights. That is particularly important for constitutional violations in the “common and recurrent” context of agents’ “search-and-seizure” violations of the Fourth Amendment. Indeed, the landmark 1971 case that first recognized a constitutional damages remedy against a federal agent, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, involved an agent’s warrantless entry into a man’s home and the use of excessive force against him.
Just like Mr. Bivens, Robert Boule sued a federal agent, U.S. Customs and Border Protection agent Erik Egbert, for violating his constitutional rights. Agent Egbert entered Boule’s property without permission and without a warrant to investigate a guest staying at Boule’s bed-and-breakfast. When Boule stepped between the guest and the agent and asked the agent to leave, Egbert threw him to the ground, injuring him. And after Boule exercised his First Amendment right to file a complaint and administrative claim with Egbert’s supervisors, Egbert retaliated against him, prompting multiple investigations, including tax audits and a state investigation of Boule’s vanity license plate (none of which uncovered any wrongdoing by Boule). Boule then sued for violations of his First and Fourth Amendment rights.
Now at the Supreme Court, that lawsuit is both narrow and broad. The facts are about one agent breaking the rules and harming one individual. But as the ACLU’s friend-of-the-court brief, filed along with the Cato Institute and other partner organizations, explains, the implications of Egbert’s arguments are enormous. The agent claims that a remedy under Bivens should never be granted in any new context, a holding that would wipe out access to Bivens remedies for every plaintiff whose claims are different from Bivens (and a handful of other cases) in any way. He also argues that all officers in Customs and Border Patrol (CBP) —the nation’s largest law enforcement agency and one with a long history of misconduct and abuse—should be categorically immune from Bivens claims. And even more broadly, he argues that all agents performing immigration enforcement should be immune, which would sweep in Immigration and Customs Enforcement agents as well.
As our brief explains, the Supreme Court should reject all of these arguments and reaffirm the availability of money damages in situations like these. For decades, the court has confirmed that damages remedies against federal agents are available in appropriate cases. This is such a case: Just as in Bivens itself, a federal agent entered private property without a warrant and used excessive force. And the agent then doubled down by retaliating when Boule filed grievances against him. The availability of money damages remedies against federal agents is vital to the vindication of our most precious constitutional rights and to deter federal agents from engaging in misconduct with impunity. The Court must not shut the courthouse doors on Bivens claims.