Supreme Court weighs whether to permit suit against Border Patrol agent

The Supreme Court on Wednesday wrestled with whether to allow a civil lawsuit to proceed against a Border Patrol agent accused of using excessive force during his search of an inn located just south of the U.S.-Canada border.

The case was procedural in nature, but at its core was the question of what legal recourse, if any, is available to an American innkeeper who claims the federal agent violated constitutional limits on unreasonable government searches and free speech protections.

The dispute arose in 2014 when Customs and Border Patrol Agent Erik Egbert entered the property of an inn located in Blaine, Wash., near the U.S.-Canadian border, and refused to leave after a request from innkeeper Robert Boule and despite having no search warrant.

Boule alleges that Egbert shoved him, which prompted Boule to lodge a complaint with Egbert’s supervisors. According to Boule’s account, Egbert later retaliated by asking the IRS to investigate Boule. Boule’s lawsuit followed.

An attorney for Egbert emphasized that, at the time, the agent harbored suspicions about the legal status of one of the guests at Boule’s inn. She also argued that her client’s conduct, which occurred around 20 feet from the border, cannot be separated from the inherent national security concerns embedded in border patrol operations. 

The Supreme Court has allowed civil suits for monetary damages over alleged constitutional violations to proceed against federal officers in only a limited set of circumstances. Wednesday’s argument asked the justices to consider whether the case before them fit within the court’s existing framework, and if not, whether its scope should be expanded. 

Since the court’s landmark 1971 decision in Bivens, which permitted a Fourth Amendment claim to proceed against federal drug enforcement officials, the justices have expanded their criteria for permissible suits only twice over the intervening 40 years — in a gender discrimination case against a member of Congress, and in a suit against jailers over an alleged violation of the Constitution’s ban on cruel and unusual punishment.

The question in Wednesday’s dispute was whether Boule’s lawsuit is the kind of case the court has previously allowed to proceed — in other words, whether it is similar enough to Bivens. And if Boule’s case is deemed to fall outside the court’s recognized framework, an overlapping question is whether the justices should expand their criteria to allow the suit to survive.

The main argument advanced by Boule’s attorney was that the legally relevant circumstances of her client’s Fourth Amendment claim matched those in Bivens.

The Department of Justice, which sided with the federal agent, countered that the case raised national security issues that were absent from Bivens and other relevant precedent. An attorney for DOJ said that allowing border patrol agents to be held liable would have a chilling effect that could erode the U.S.-Canadian security relationship at the border. 

“The agents who work at the board in Blaine will tell you that their most important partnership is with the Royal Canadian Mounted Police,” said Michael Huston, a DOJ lawyer. “We work together with them to police our shared border: they protect their side for our benefit, we protect our sites for their benefit. And it’s that mutual cooperative relationship, which involves daily type of liaising, that really is what enables us to protect the border.”

A decision in the case, Egbert v. Boule, is expected by this summer.