A man who helped smuggle illegal immigrants across the Canadian border, but also reported some of them to the U.S. Border Patrol, cannot sue an agent for personal damages under claims his constitutional rights were violated, the U.S. Supreme Court ruled Wednesday.
Justices saw the case as a major test of what’s known in law as a Bivens action, where someone sues a federal officer carrying out his official duties. Under a 1971 high court case, some officers can be sued.
But Wednesday’s ruling seriously circumscribes the instances where that can actually happen, justices said.
The case stemmed from a bizarre series of events in Washington state, where Robert Boule owned a lodge — named “Smuggler’s Inn” — that straddled the border.
He would house, and sometimes drive, illegal border crossers, yet also report them to U.S. Border Patrol agents. He collected the migrants’ fees, and said he also earned tens of thousands of dollars as a confidential informant for the feds.
On March 14, 2014, after Mr. Boule reported on a Turkish man arriving from New York, Border Patrol Agent Erik Egbert showed up to investigate. But Mr. Boule ordered the agent to leave, and when the agent refused, things escalated. Mr. Boule says the agent picked him up and threw him against his SUV.
Mr. Boule complained, and the Border Patrol investigated but took no action, and a tort claim against the agent also failed. Mr. Boule says Agent Egbert also retaliated against him, reporting him to the IRS for an audit and to the state for action over his license plate, which read “SMUGLER.”
Mr. Boule then sued under Bivens, saying the agent had used excessive force and violated his First Amendment rights by retaliating.
A district court shot down the claims, but the 9th U.S. Circuit Court of Appeals said Mr. Boule’s claims could proceed, saying they were valid under Bivens.
Justice Clarence Thomas, writing the chief opinion Wednesday, said the appeals court bungled it.
He said that while Bivens allows court-created avenues for personally suing a federal officer, they don’t extend to the border context, where national security issues are in play. If Congress wanted Border Patrol agents to be on the hook for their actions while carrying out their duties, lawmakers must say so, the high court concluded.
The ruling follows a 2020 decision in which the justices declined to allow a Mexican family to claim damages from an agent after he fired across the border, killing their 15-year-old son.
Wednesday’s decision didn’t overturn Bivens, but Justice Neil M. Gorsuch said it might as well have.
Writing a concurring opinion, he said the facts of the case are so similar to the original 1971 case that it’s difficult to see how the current court can come to a different conclusion. He suggested it was time to send Bivens to the dustbin altogether.
“If the costs and benefits do not justify a new Bivens action on facts so analogous to Bivens itself, it’s hard to see how they ever could. And if the only question is whether a court is ‘better equipped’ than Congress to weigh the value of a new cause of action, surely the right answer will always be no,” he wrote.
Writing separately, Justice Sonia Sotomayor, joined by the court’s other Democrat-appointed members, said Mr. Boule should have been allowed to sue for his excessive force claims.
“The Court’s decision today ignores our repeated recognition of the importance of Bivens actions, particularly in the Fourth Amendment search-and-seizure context, and closes the door to Bivens suits by many who will suffer serious constitutional violations at the hands of federal agents,” she wrote.
The Turkish man who drew the Border Patrol’s attention did sneak across the border into Canada later that night.
Mr. Boule, meanwhile, was convicted in a Canadian court in December on charges of trafficking 11 Afghans and Syrians, charging between $200 and $700 apiece, Justice Thomas wrote.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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