from the SCOTUS:-who-are-we-to-presume-to-adjudicate-cases dept
The Supreme Court has been very reluctant to handle cases that might expand protections for American citizens. It has instead, in recent years, chosen to hand down decisions that curtail rights and make it far easier for government employees to escape lawsuits.
This Supreme Court’s decision in a lawsuit filed by a US citizen versus a US Border Patrol agent is more of the same. The Ninth Circuit Court of Appeals found in favor of Washington resident Robert Boule, who was accosted by a Border Patrol agent on his property as he drove his guest (a Turkish national) to the bed-and-breakfast he operates near (and I mean VERY NEAR) the Canadian border. Boule’s property (housing his “Smuggler’s Inn” bed-and-breakfast) extends five feet past the US-Canada border, something he has playfully marked with a line of stones.
His “Smuggler’s Inn” is aptly named. Boule’s history is what people would call “checkered” if they’re not bold enough to use the word “troubling.” Boule’s inn has frequently hosted actual smugglers, resulting in the recovery of drugs from his BnB on several occasions. Boule has also spent several years as a federal informant, which has contributed to the multiple drug recoveries. According to the history recounted in the Supreme Court decision, Boule has also charged people money to cross the border with their illicit goods, promising them safe passage to the “Smuggler’s Inn” prior to ratting them out to federal agents.
In this case, Boule informed the Border Patrol he would be picking up a Turkish national of possible interest to the US government at the Seattle airport. The Turkish national cleared customs and made his way back to the inn in Boule’s car. Agent Egbert — despite having ample time to stop or detain Boule and his passenger before Boule reached his property chose to wait until Boule had pulled up in his driveway. It was at that point the agent decided to detain the Turkish national.
Boule stood between Agent Erik Egbert as he tried to get to Boule’s passenger. When Boule refused to move, Agent Egbert shoved him against the car before grabbing him and throwing him to the ground.
The Appeals Court said this Bivens action was pretty much a carbon copy of the original Bivens lawsuit, which saw the Supreme Court side with Webster Bivens, who had his rights violated when six Federal Bureau of Narcotics (the predecessor of the DEA) agents intruded on his private property without a warrant, searched his residence, and arrested him. The only difference, as the Ninth Circuit saw it, was the name of the agency involved. It allowed Boule to continue with his Bivens lawsuit against Agent Egbert.
Egbert appealed. The Supreme Court’s opinion [PDF] (delivered by Justice Clarence Thomas) says this claim is so novel — so different from the original Bivens action that gives this sort of lawsuit its name — that it cannot possibly allow the lawsuit to continue. The same court that recently ruled there’s no way to sue a Border Patrol agent who fired 16 bullets across the Mexican border (placing 10 of those into the body of a 16-year-old standing on Mexican soil, killing him), says there’s no lawsuit here either.
The Bivens inquiry does not invite federal courts to independently assess the costs and benefits of implying a cause of action. 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.” Ziglar, 582 U. S., at _ (slip op., at 12). Thus, a court should not inquire, as the Court of Appeals did here, whether Bivens relief is appropriate in light of the balance of circumstances in the “particular case.” Stanley, 483 U. S., at 683. A court inevitably will “impai[r]” governmental interests, and thereby frustrate Congress’ policymaking role, if it applies the “‘special factors’ analysis” at such a narrow “leve[l] of generality.” Id., at 681. Rather, under the proper approach, a court must ask “[m]ore broadly” if there is any reason to think that “judicial intrusion” into a given field might be “harmful” or “inappropriate.” If so, or even if there is the “potential” for such consequences, a court cannot afford a plaintiff a Bivens remedy.
The Supreme Court says it will not create a new cause of action if there exists any remedy at all elsewhere. In this case, it points to existence of a complaint form citizens can fill out when their rights have been violated by Border Patrol agents. That’s it. That’s all the court needs to, as it sees it, somehow stepping on Congress’ toes by allowing lawsuits against federal agents proceed.
But, as the dissent points out, there’s no new cause of action being created here. In the original Bivens case, federal officers warrantlessly intruded on someone’s property and violated their Fourth Amendment rights. That’s exactly what happened here:
The only arguably salient difference in “context” between this case and Bivens is that the defendants in Bivens were employed at the time by the (now-defunct) Federal Bureau of Narcotics, while Agent Egbert was employed by CBP. As discussed, however, this Court’s precedent instructs that some differences are too “trivial . . . to create a new Bivens context.” Ziglar, 582 U. S., at _ (slip op., at 26).2 That it was a CBP agent rather than a Federal Bureau of Narcotics agent who unlawfully entered Boule’s property and used constitutionally excessive force against him plainly is not the sort of “meaningful” distinction that our new-context inquiry is designed to weed out.
The majority’s holding is clearly ridiculous, the dissent (written by Justice Sotomayor) says. No case will ever be “close enough” to satisfy the bar being set here.
Indeed, if the “new context” inquiry were defined at such a fine level of granularity, every case would raise a new context, because the Federal Bureau of Narcotics no longer exists.
Just as ridiculous is the majority’s assertion that the mere existence of complaint form is all the remedy those whose rights have been violated by federal border security agents will ever need.
Moreover, the Court’s holding that a nonbinding administrative investigation process, internal to the agency and offering no meaningful protection of the constitutional interests at stake, constitutes an alternative remedy that forecloses Bivens relief blinks reality.
With this decision, the Supreme Court has basically retconned its Bivens decision out of existence. There will be almost no situation where it will find a person can pursue a case under this action. As long as the government has interests (in this case border/national security) or the employing agency has a form to fill out, the alleged rights violator can walk away from the lawsuit. Whatever minimal amount of deterrence the 1971 Bivens decision created has been erased by this court’s unwillingness to consider its own precedential decision as anything more than a handy way to deny justice to people whose rights have been violated.