Egbert v. Boule Shields DHS Agents from Accountability for Unconstitutional Surveillance

June 28, 2022 | Dana Khabbaz, EPIC Law Fellow

Earlier this month, the Supreme Court issued a decision in Egbert v. Boule granting Customs and Border Patrol (“CBP”) officers immunity from lawsuits for constitutional violations.

The constitutional violations at issue occurred during an encounter between Boule, an American citizen, and Egbert, a Border Patrol agent. Egbert, the Border Patrol agent, “became violent” with Boule. Egbert “threw Boule first against [Boule’s] vehicle and then to the ground.” Seeking damages in response to the encounter, Boule filed a Federal Torts Claims Act suit, which was denied, followed by a lawsuit under Bivens. In his Bivens suit, Boule argued that the Egbert had violated the Fourth Amendment and First Amendment by using excessive force against Boule and by retaliating against Boule. The Supreme Court denied Boule’s Bivens claims, holding Border Patrol agents exempt from Bivens liability.  

Bivens lawsuits are a category of lawsuits for damages for constitutional violations committed by federal officers acting under color of federal authority. The original Bivens case, decided by the Supreme Court in 1971, concerned a Fourth Amendment violation committed by a federal law enforcement agent. In that case, Federal Bureau of Narcotics agents had entered Bivens’ home, searched the home, and arrested him. Bivens filed a complaint arguing that his constitutional rights under the Fourth Amendment were violated. The Supreme Court held that Bivens had successfully shown a legal reason to sue, basing its decision on established precedent that “damages” are “the ordinary remedy for an invasion of personal interests in liberty” and that “where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.”

While the Bivens decision was once a promising vehicle for civilian redress for constitutional violations by federal law enforcement, the Supreme Court has recently severely cabined the decision. In the 2017 decision in Ziglar v. Abbasi, the Supreme Court imposed a restrictive, two-part test for determining whether Bivens liability applies. The first step in the test is to determine whether a “claim arises in a new Bivens context.” Here, the Court calls for a close comparison between the facts of the claim at issue and the facts of Bivens or other Supreme Court cases applying Bivens. If any aspect of the case “is different in a meaningful way from previous Bivens cases decided by this Court,” then the Court will not extend Bivens. Other than Bivens itself, there have only been two affirmative applications of Bivens by the Supreme Court since the 1971 decision: once in the 1979 Davis v. Passman case and another in the 1980 Carlson v. Green case. “Meaningful” differences from the facts of Bivens or these two cases may include if “the rank of the officers involved” differs or if the case concerns a different constitutional right. The second step of the test in Ziglar is to determine if there are any “potential special factors counselling hesitation” on the part of the judiciary. In Ziglar, these special factors included that the respondents were asserting constitutional rights violations in the context of a federal post-9/11 detention policy—“sensitive issues of national security” that are “the prerogative of the Congress and President,” the Court stated.

In its review of Boule’s claim, the Supreme Court doubled down on Ziglar’s narrowing of Bivens suits—all but overturning Bivens. “[R]ecognizing a cause of action under Bivens is ‘a disfavored judicial activity,’” the Court wrote, and “‘[e]ven a single sound reason to defer to Congress’ is enough to require a court to refrain from creating such a remedy.” The Court went on to collapse Ziglar’s already-restrictive two-part test to a “single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.”

Boule’s claim bore remarkable similarities to the facts in Bivens—it, too, included a Fourth Amendment excessive force claim against a federal law enforcement agent. But the similarities between Boule’s Fourth Amendment claim and the Fourth Amendment claim in Bivens were not enough, since Boule’s claim involved a Border Patrol agent. The Court reasoned that the mere fact that the claim concerned a Border Patrol agent raised the question of “whether a court is competent to authorize damages actions . . . against Border Patrol agents generally.” The involvement of the Border Patrol agent thus implicated border security and national security—factors that the Court held counselled hesitation.

The Court also denied Boule’s First Amendment claim, holding that since the Court had never affirmatively applied Bivens to a First Amendment claim, the claim “presents a new Bivens context.” In addition, even though Boule alleged a factual similarity to the Davis v. Passman case, the Court determined this was insufficient to justify extending Bivens to Boule’s claim.

Surveillance Implications of Immunizing Border Patrol Agents from Bivens Suits

The Supreme Court’s decision to immunize Border Patrol agents in Egbert v. Boule is alarming. The decision is concerning not only because it further guts Bivens suits—shrinking plaintiffs’ opportunities for remedies for violations of their constitutional rights. But it also grants Border Patrol agents immunity from liability for any unconstitutional acts they commit “under color” of their “federal authority.” The categorical exemption of Border Patrol agents from Bivens liability erodes any remaining hope that Bivens suits may be brought against CBP and ICE agent for unconstitutional surveillance.

The Egbert v. Boule decision follows the Supreme Court’s 2020 decision Hernandez v. Mesa, where the Court had declined to extend Bivens to facts involving a Border Patrol agent fatally shooting a noncitizen across the U.S. border. As the Court described, “[t]he shooting quickly became an international incident” between the United States and Mexico. Because the shooting related to “foreign affairs and national security” and had an “extraterritorial aspect,” the Court declined to extend Bivens. The similarities between Egbert v. Boule and Hernandez are limited. Boule is a U.S. citizen, and the altercation between Boule and Egbert did not occur across the border—only near it. Nonetheless, it was enough that Boule’s lawsuit was “against a Border Patrol agent” for it to “present[] national security concerns that foreclose Bivens relief.”

It is already concerning that Supreme Court precedent in Ziglar and Hernandez encourages law enforcement agent immunity in cases involving noncitizens and immigrants—and under facts that can be characterized as matters of “national security.” It is similarly already troubling that some circuit courts are applying Ziglar to restrict Bivens claims in surveillance contexts. But Egbert goes a step further—exempting an entire category of law enforcement agents from liability for constitutional violations, seemingly regardless of where they may commit a constitutional violation or in what context they may commit that violation.

The Egbert decision’s implications extend far beyond the factual circumstances of the case itself. Federal border patrol agents and similar law enforcement agents are currently engaging in constitutionally questionable surveillance practices near and far from the borders, and the Egbert decision shields them from accountability.

CBP agents enjoy jurisdiction within 100 miles of U.S. geographic boundaries—in which almost 2/3 of all American residents live. CBP has even been known to at times operate outside of that jurisdiction. When coupled with the Egbert decision, this means CBP agents that violate the constitutional rights of people living within the 100-mile border zone are immunized from lawsuits brought by their victims.

Moreover, Egbert’s holding may not apply only to CBP agents. After all, the Supreme Court held that the judiciary was not competent to handle suits against Border Patrol agents because their work concerns border security and national security. By that same logic, there is reason to believe the Court would apply the same reasoning to Immigration and Customs Enforcement (“ICE”) agents. ICE, an agency with the mandate of enforcing immigration laws, can operate anywhere in the United States.

Department of Homeland Security (“DHS”) components ICE and CBP are running a mass surveillance operation across the country—gathering data and tracking large portions of the population, including U.S. citizens. For example, ICE has the ability to “locate 3 in 4 adults through their utility records.” The constitutionality of ICE and CBP’s surveillance practices is highly questionable. For example, after a 2018 Supreme Court decision in Carpenter prohibiting warrantless location surveillance using cell-site location information, ICE and CBP instead began purchasing mobile location data from data brokers. For now, the agencies are treating these data broker back channels as Fourth Amendment loopholes that allow them to continue obtaining location data without a warrant. Despite mounting evidence that CBP and ICE are engaging in unconstitutional surveillance, the Egbert decision diminishes surveilled American residents’ opportunities for legal redress for violations of their constitutional rights.

By categorically eliminating Bivens liability for Border Patrol agents, the Supreme Court’s decision in Egbert does more than foreclose Bivens claims by noncitizens crossing the border, or even claims by Americans engaged in smuggling across the border. The decision in fact may foreclose Bivens claims for people residing anywhere in the United States whose constitutional rights are violated by CBP or ICE agents—including those currently subject to the agencies’ invasive surveillance practices.

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