SCOTUS Says Doing Nothing Deters Fourth Amendment Violations

In a case called Bivens v Six Unknown Fed. Narcotics Agents, the United States Supreme Court held that a “violation of [the Fourth Amendment] by a federal agent acting under color of his authority gives rise to a cause of action for damages.” So, if you believe that a federal agent has violated your Fourth Amendment rights against unreasonable searches and seizures, you can file a lawsuit in federal court and seek money damages.

The Supreme Court’s decision in Bivens is more than half a century old. Some judges have criticized it over the years. But no one can dispute that, even after yesterday’s decision by the Supreme Court in a case called Egbert v Boule, Bivens is still good law. Indeed, as the 6-3 Republican majority explained in its Egbert decision, they have repeatedly declined opportunities to overrule Bivens.

“[R]ather than dispense with Bivens altogether,” Justice Clarence Thomas wrote on behalf of the majority, “we have emphasized that recognizing a cause of action under Bivens is ‘a disfavored judicial activity.'” Yet, even after choosing to keep Bivens alive, the Supreme Court majority wasn’t afraid to make it clear that Bivens remains on thin ice, warning “that if we were called to decide Bivens today, we would decline to discover any implied causes of action in the Constitution.”

So, you’re probably asking, why keep Bivens alive at all if you’re the Supreme Court? The Supreme Court majority avoids answering that question. But it doesn’t avoid recognizing that “Bivens ‘is concerned solely with deterring the unconstitutional acts of individual officers….'” And the circumstances in Egbert paint a clear picture of what that “deterrence” will look like in the future.

The allegations in Egbert paint a picture of a classic Fourth Amendment violation.

Robert Boule owned and operated a bed-and-breakfast on the border between the U.S. and Canada in Washington. Because people often used his property to illegally cross the U.S.-Canada border, Boule had a chance to serve as an informant for the federal government. He started working as an informant for Customs and Border Protection (CBP) in 2003. And, five years later, he started working as an informant for Immigration and Customs Enforcement (ICE), too.

Fast forward to March of 2014, and Boule was still working as an informant for ICE. But, on March 20, 2014, Boule learned that cooperating with law enforcement only takes you so far. On that date, CBP Agent Erik Egbert stopped Boule twice while he was running errands. And, knowing Boule was a longtime government informant, Egbert asked him about guests at his bed-and-breakfast. Boule told Egbert that he expected a guest from New York who had flown in from Turkey. But that was it.

Egbert spent the rest of the morning patrolling near Boule’s bed-and-breakfast. And, when he saw the vehicle he suspected had the guest from New York, Egbert made his move. He entered onto Boule’s property without permission, passing a “no trespassing” sign in the process. Then, when Boule asked Egbert to leave his property and stepped between him and the vehicle, Egbert grabbed Boule by his chest, shoved him against his vehicle and then threw him to the ground.

The Fourth Amendment prohibits “unreasonable searches and seizures” and requires “probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” So, it’s not hard to imagine how someone in Boule’s shoes would believe that Egbert violated their Fourth Amendment rights. Surely such a Fourth Amendment violation has consequences, right?

According to the Supreme Court, you can’t file a lawsuit for a violation of your constitutional rights.

Because of the Supreme Court’s decision in Bivens, most Americans have long believed that consequences for a Fourth Amendment violation came via a federal-court lawsuit. After all, as the majority in Egbert explained, “[i]n Bivens … this Court authorized a damages action against federal officials for alleged violations of the Fourth Amendment.” And, in Bivens, like in Egbert, the Fourth Amendment violation at issue involved a federal officer unlawfully entering someone’s property and using unreasonable force.

Despite leaving Bivens supposedly untouched, the majority in Egbert held that no cause of action existed for Boule with respect to Egbert’s conduct. More simply, the Supreme Court ruled that Boule can’t file a lawsuit against Egbert. According to the majority, as long as 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,'” federal courts must dismiss lawsuits in this context.

If you’re asking yourself when that won’t be the case, i.e., when Congress won’t be better suited to weigh the costs and benefits of allowing a damages actions to proceed, the answer is never. The Supreme Court consists of politically hand-picked, unelected Ivy League (plus Notre Dame) law school graduates. Voters elect those in Congress, however. In that sense alone, you can always find “rational reasons (even one) to think that Congress is better suited to ‘weigh the costs and benefits of allowing a damages action to proceed.”

But don’t take my word for it. Justice Neil Gorsuch, one of the justices who joined the majority opinion, said the exact same thing. “And if the only question is whether a court is ‘better equipped’ than Congress to weigh the value of a new cause of action,” he wrote, “surely the right answer will always be no.”

So, if you can’t file a lawsuit, what deters federal officers from violating your constitutional rights?

At this point, anyone who doesn’t like the idea of federal officers entering your property without permission, shoving you and throwing you to the ground probably have at least a couple more questions. Here’s one: What deters federal officers from violating your constitutional rights if you can’t file a lawsuit against them? The Supreme Court answered, or at least tried to answer, that question.

According to the current Supreme Court majority, this outcome doesn’t undermine Bivens‘ “concern[] … with deterring the unconstitutional acts of individual officers” because “Congress has provided alternative remedies for aggrieved parties in Boule’s position….” First, the majority said, Boule could file a claim under the Federal Tort Claims Act. This alternative remedy sounds good in theory. But, as Justice Sonia Sotomayor pointed out in her dissent, the Supreme “Court repeatedly has observed that the FTCA does not cover claims against Government employees for ‘violation[s] of the Constitution of the United States.” So, that’s not actually an option for someone like Boule.

The second option isn’t much better. According to the majority, the other alternative remedy is to file a grievance through the Administrative Remedy Program. But, you might think, isn’t that just an internal thing for federal agencies? It is indeed. As the majority even admits, Boule was “not entitled to participate and has no right to judicial review of an adverse determination” in the Program. But, the Supreme Court said, this alternative “remedy” that you can’t participate in is still good enough to deter federal officers from violating your constitutional rights.

Is doing nothing really an adequate remedy? Does doing nothing really deter constitutional violations?

It’s hard to put it any better than Justice Sotomayor did in her dissent. “This analysis,” she wrote, “drains the concept of ‘remedy’ of all meaning.” She’s exactly right. And Boule’s case proves it. Boule never received any relief at all for Egbert’s conduct. As a result of the Supreme Court’s decision, his federal-court lawsuit ended. His FTCA claim failed, too. So, all he had left to reply on was CBP’s own internal investigation.

And Egbert? CBP eventually acknowledged that Egbert wasn’t forthcoming in its investigation and “demonstrated a lack of integrity….” Nevertheless, as the majority pointed out, “Border Patrol took no action against Agent Egbert for his alleged use of force….” In fact, he even “continued to serve as an active-duty Border Patrol agent.”

Given the outcome, it’s fair to wonder what would have changed had the Fourth Amendment not existed. It’s possible the answer is simple—and devastating: nothing.

You can read our previous analysis of this case here.