HOW SCOTUS PROTECTS BAD FEDERAL OFFICERS.

• Author: Root, Damon
• Position: LAW - Egbert v. Boule

SEVERAL RECENT SUPREME

Court decisions have made it nearly impossible to sue a federal officer for alleged violations of constitutional rights. Now the Court is weighing a new case, Egbert v. Boule, that could continue this sorry trend.

Robert Boule is the owner of a bed-and-breakfast in Washington state near the Canadian border. Border Patrol agent Erik Egbert sought to question one of Boule's guests, a Turkish national, about his immigration status. Boule told the agent to leave his property. Egbert refused, then allegedly shoved Boule against a car and pushed him to the ground, injuring his shoulder. After Boule complained to Egbert's superiors, the agent allegedly retaliated by asking the IRS to investigate Boule, who was audited.

Boule sued Egbert in federal court under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, a 1971 decision in which the Supreme Court said federal officers can be held civilly liable for violating people's constitutional rights. Unfortunately, the Court has since narrowed Bivens to the point of practically overruling it.

In the 2017 case Ziglar v. Abbasi, for example, the justices said that when a Bivens claim arises in a context that is "different in a meaningful way from previous Bivens cases decided by this Court," the presiding judge must search for any "special factors counselling hesitation" and toss the case if he finds them. "If we have reason to pause before applying Bivens in a new context or to a new class of defendants," the Court emphasized in the 2020...