A Border Patrol agent assaulted him and violated his First Amendment rights. He might never sue.

Federal government officials should not be allowed to violate public rights with impunity. That’s the uncontroversial premise behind a series of petitions to the United States Supreme Court about law enforcement officers who broke a clearly established law and whose victims want to seek redress.

Recourse may prove elusive, or even impossible.

The Court has not yet announced whether it will hear two of these cases. The first involves a federal officer who engineered a bogus sex trafficking ring and imprisoned a teenage girl on false charges for two years. The second involves a Department of Homeland Security (DHS) agent who, outside a bar, attempted to shoot a man with whom he had a personal issue. Federal courts in both cases found that the two government agents violated a clearly established law but were protected by absolute immunity and therefore could not be prosecuted solely because of their status with the federal government.

But a similar case has made its way to the judges, who are due to hear it on March 2 – although it looks like they are set to make it even harder for victims of federal government abuse to obtain a meaningful remedy when their rights are violated.

In 2014, U.S. Border Patrol Agent Erik Egbert tracked a man to a guesthouse he was staying in in Washington state. This man was from Turkey and Egbert speculated that the guest may have come to the United States illegally due to the inn’s proximity to the Canadian border.

He was wrong. But Egbert pursued the man and refused to leave the private property after his landlord, Robert Boule, asked him to. In response, Egbert pushed Boule into a car and then to the ground, eventually resulting in injuries to Boule’s back that required medical attention. Boule later filed a complaint with Egbert’s supervisor, which the Border Patrol agent countered by threatening to subject him to an IRS business audit—a promise he kept.

It’s been almost eight years and Boule has yet to have his day in court, having spent most of the past decade petitioning the government for the privilege of appearing before a jury and seeking damages. So far he’s been successful: The District Court and United States Court of Appeals for the 9th Circuit sided with Boule and said he should be given the opportunity to file a civil suit against Egbert for violating his First and Fourth Amendment rights.

This should not be surprising. Under a 1971 Supreme Court precedent—Bivens c. Six unknown named agents of the Federal Bureau of Narcotics— federal agents can be prosecuted when they violate someone’s rights. But in recent years the High Court has watered down its own decision significantly, now requiring federal agents to be able to not be prosecuted if a federal judge identifies “special factors that advise hesitation”. You can see where such a subjective standard could go wrong.

It was this standard that protected officer Heather Weyker, who spoke about the sex trafficking ring, and DHS agent Ray Lamb, whose gun jammed when he tried to shoot the man with whom he had a quarrel. Neither received qualified immunity, the legal doctrine that protects certain government officials from civil liability if the manner in which they misbehaved was not “clearly established” in a ruling. of previous justice. Weyker and Lamb broke the law, as the courts have found. Yet, though they were denied qualified the immunity they received absolute immunity and cannot be sued simply because of their federal employee status, which should mean a responsibility to protect the public, not a green light to violate their rights without fear of accountability.

Perhaps as a testament to the seriousness of Egbert’s misconduct, he failed to cross the low bar surpassed by Weyker and Lamb. He therefore asks the Supreme Court to lower the bar even further. A decision in Boule’s favor would “reduce the ability of Border Patrol agents to fulfill their fundamental mission of securing the border, enforcing immigration laws and protecting national security,” the government wrote in a statement. his petition for review, as if immigration officials should reserve the right to assault people and weaponize their power unlawfully in order to do their job effectively.

“The stakes are very high,” says Anya Bidwell, an attorney at the Institute for Justice, a public interest law firm that filed a friend brief on behalf of Boule this week. If Egbert succeeds, “it wouldn’t mean Bivens recourse in the vast majority of cases. This would mean absolute immunity for federal police and other federal officials.”

Based on recent Supreme Court case law on the matter, it seems this scenario could be the likely outcome – giving federal agents carte blanche to break the same rules they are expected to follow.

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