The U.S. Supreme Court reversed the 9th U.S. Circuit Court of Appeals decision to uphold Smuggler’s Inn owner Bob Boule’s Fourth Amendment excessive-force claim and First Amendment retaliation claim against a U.S. Border Patrol agent in a June 8 decision.
The opinion, written by justice Clarence Thomas, said the court’s past cases have made clear that a cause of action – right to sue – is a job for Congress, not the courts, except in the most unusual circumstances. The Constitution does not say how the rights of individuals against the government are to be enforced. The court held that Boule does not have a cause of action to sue a federal agent for alleged First and Fourth amendment violations when enforcing immigration laws along the border.
Boule filed a lawsuit against border patrol agent Erik Egbert for unreasonable search and use of excessive force after the agent suspected Boule of smuggling a Turkish immigrant through the U.S./Canada border in 2014. After Boule reported Egbert to his superiors following the incident, the agent reported Boule to the IRS and other government agencies. Boule argued such actions were in retaliation against him.
If Boule’s claims were upheld, the case would have expanded the court’s Bivens precedent to the First Amendment and extended Fourth Amendment claims to include federal agents. Congress authorized lawsuits against state and local officials in the Enforcement Act of 1871, also referred to as the Ku Klux Klan Act because it was used to combat attacks on Black people after the Civil War.
Under the Bivens precedent, an individual has a cause of action against federal law enforcement officers. Over the past 42 years, the U.S. Supreme Court has declined 11 times to apply a similar cause of action as it did in 1971, according to the opinion, this being the twelfth.
Opening arguments were given on March 2, and the court was expected to rule on the case in mid-June.
Greg Boos of Bellingham-based Cascadia Cross-Border Law said it was the idea of Boule’s original counsel, which included Boos, to use Bivens. After the initial hearing, he said Boule’s case stood a chance as some judges sounded sympathetic.
In a partial dissenting opinion, justices Sonia Sotomayor, Stephen Breyer and Elena Kagan argued for Boule’s Fourth Amendment claim to be upheld.
Boule pleaded guilty in B.C. Superior Court in August 2021 to helping people cross into Canada from his bed-and-breakfast. He was sentenced to 30 days in jail, which was considered time served, and 30 months of probation.
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