- The owner of Smuggler’s Inn near the Canadian border said a Customs agent pushed him to the ground.
- A 1971 Supreme Court ruling lets people sue federal police, but under limited circumstances.
- A 6-3 majority concluded that courts should generally defer to Congress on federal police liability.
WASHINGTON – The Supreme Court on Wednesday ruled against a man who had sued a US Customs and Border Protection agent for excessive force, wading into the divisive issue of liability and accountability for federal police officers.
The dispute between the owner of the Smuggler’s Inn, located feet from the northern border, and the customs agent came before the justices at a time when lower courts and lawmakers have wrestled with the question of when law enforcement may be sued. In the case of federal officers, courts have allowed such suits in limited circumstances.
Associate Justice Clarence Thomas, writing for a 6-3 majority, said that it is generally the job of Congress to allow Americans to sue federal police for excessive force violations under the Fourth Amendment, not the courts.
“Congress is better positioned to create remedies in the border-security context, and the government already has provided alternative remedies that protect plaintiffs,” Thomas wrote, a reference to an internal US Customs grievance procedure.
Associate Justice Sonia Sotomayor dissented from the court’s ruling on the Fourth Amendment claim, asserting that it “contravenes precedent and will strip many more individuals who suffer injuries at the hands of other federal officers…of an important remedy.” Sotomayor agreed with the court’s ruling against the inn owner’s separate First Amendment claim.
Sotomayor’s opinion was joined by two other liberal justices.
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Americans may file civil rights lawsuits against state and local police under a Reconstruction-era federal law, but the law doesn’t apply to federal law enforcement. Claims against federal agencies are instead allowed under a Supreme Court precedent from 1971, Bivens v. Six Unknown Named Agents, in which agents with what was then the Federal Bureau of Narcotics searched the home of a man without a warrant.
The key question that has divided lower courts is the scope of the 1971 previous: Does it permit suits against federal police in other circumstances, or must the facts of a lawsuit closely match the warrantless search involved in Bivens?
The Supreme Court has been hesitant to permit lawsuits if they raise new claims under new circumstances, arguing that it is Congress that should authorize those lawsuits, not the federal courts. Fourth Amendment advocates say that hesitancy has created a situation where it’s virtually impossible to bring suits against federal officers.
Thomas wrote that when deciding whether to expand the circumstances under which a Bivens lawsuit may be filed, courts must consider “whether there is any reason to think that Congress might be better equipped to create a damages remedy.” In a concurring opinion, Associate Justice Neil Gorsuch asserted the answer should always be “yes.”
“Weighing the costs and benefits of new laws is the bread and butter of legislative committees,” Gorsuch wrote. “It has no place in federal courts charged with deciding cases and controversies under existing law.”
“The 6-3 conservative majority of the Roberts Court, once again, closes the courthouse door on individuals victimized by governments abuse of power, this time holding that federal border guards cannot be sued, even for flagrant constitutional violations,” David Gans, with the liberal Constitutional Accountability Center. “It is a grave error that betrays our Constitution.”
The criticism is similar to concerns raised about qualified immunity for local police because it opens a debate about how much liability police should face for jobs that often involve split-second decisions. Qualified immunity is the legal doctrine that protects officers from liability for civil rights violations in many circumstances.
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Robert Boule, the owner of the Smuggler’s Inn near the Canadian border in Washington state, said the Customs agent used excessive force by pushing him to the ground. The agent, Erik Egbert, was on Boule’s property at the time and seeking to speak with one of the inn’s guests. Boule intervened and asked Egbert to leave.
Boule also claimed that Egbert violated his First Amendment rights by retaliating when he called his superiors at the agency to complain about the incident. He said that Egbert responded by asking the IRS to investigate the Smuggler’s Inn.
A federal district court dismissed the case against the CPB agent. But the California-based US Court of Appeals for the 9th Circuit reversed that decision.