The Supreme Court handed down a decision on Wednesday which effectively gives Border Patrol agents who violate the Constitution total immunity from lawsuits seeking to hold them accountable.

Justice Clarence Thomas’s majority opinion in Egbert v. Boule, moreover, has implications that stretch far beyond the border. Egbert guts a seminal Supreme Court precedent, Bivens v. Six Unknown Named Agents (1971), which established that federal law enforcement officers who violate the Constitution may be individually sued — and potentially be required to compensate their victims for their illegal actions.

Egbert is a severe blow to the broader project of police accountability. While it does not target lawsuits against state law enforcement officers who violate the Constitution, it all but eliminates the public’s ability to sue Border Patrol officers — and possibly all federal officers — who commit similar violations.

In fairness, Egbert does indicate that people who believe their rights were violated by federal law enforcement may file a grievance with the law enforcement agency that employs the officer who allegedly violated the Constitution. But such grievances will be investigated by other law enforcement officers, and no court or other agency can review a law enforcement officer’s decision to exonerate a fellow officer.

And, perhaps most importantly, Egbert most likely shuts down a civil rights plaintiff’s ability to be compensated if their rights are violated.

The plaintiff in Egbert alleged a very straightforward violation of the Fourth Amendment

The plaintiff in this case, Robert Boule, is, admittedly, a somewhat shady figure. Boule operates a bed and breakfast along the border between Washington state and Canada, one cheekily named the Smuggler’s Inn.

Though Boule has, at times, acted as a paid confidential informant for immigration officials, his “guests” sometimes use his property to illegally cross the border. According to Thomas’s opinion, “federal agents also have seized from the Inn shipments of cocaine, methamphetamine, ecstasy, and other narcotics.”

Nevertheless, Boule alleges that he was the victim of a fairly straightforward Fourth Amendment violation: the use of excessive force by a law enforcement officer.

In March of 2014, Boule welcomed a guest who had recently arrived in the United States from Turkey. The guest was lawfully present in the United States but federal border patrol agent Erik Egbert decided to confront this guest when he arrived at the Smuggler’s Inn.

Upon the guest’s arrival, Egbert drove onto Boule’s property and approached the car containing the guest. Egbert refused to leave after Boule asked him to do so, and then Boule stepped between the border patrol agent and his guest. Egbert then allegedly shoved Boule against the car, grabbed him, and pushed him to the ground.

Boule sued, claiming that he should be compensated for this alleged violation of his Fourth Amendment right to be free of excessive force.

These facts, as Justice Sonia Sotomayor notes in dissent, closely track the facts of the Bivens case. In that case, Sotomayor explains, “the plaintiff alleged that Federal Bureau of Narcotics agents unlawfully entered his apartment in New York City and used constitutionally unreasonable force to arrest him.” And Bivens determined that this plaintiff could sue the officer who allegedly used excessive force.

The Fourth Amendment prohibits “unreasonable searches and seizures.” And Bivens established that a violation of this amendment “by a federal agent acting under color of his authority gives rise to a cause of action for damages.”

Before Wednesday’s decision in Egbert, in other words, it was well-established that federal law enforcement officers who use unconstitutionally excessive force may be sued in federal court. Egbert explicitly exempts all Border Patrol agents from this rule, and it could be read to exempt nearly all — if not all — federal law enforcement officers from Bivens suits.

Bivens, explained

While the Constitution places numerous limits on law enforcement officers, including the Fourth Amendment’s safeguards against excessive force, it is silent about what the proper remedy is against an officer who violates these limits. A federal law explicitly authorizes suits against state and local officers who violate “any rights, privileges, or immunities secured by the Constitution and laws,” but there is no similar statute that explicitly authorizes suits against federal agents.

Nevertheless, the Court held in Bivens that a right to sue federal law enforcement officers is implicit in the Constitution. “Power,” Justice William Brennan wrote in Bivens, “once granted, does not disappear like a magic gift when it is wrongfully used.” An officer who acts unlawfully “in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own.” And thus there must be a meaningful remedy to ensure that officers do not abuse this power.

Shortly after Bivens was decided, however, President Richard Nixon made two appointments to the Supreme Court, giving the Court a new majority that was far less sympathetic to the rights of criminal defendants. And, in large part due to the Electoral College and a malapportioned Senate that gives Republicans an unfair advantage in the fight for control over the judiciary, the Court has marched steadily rightward ever since.

As a result, the Court’s most recent decisions, including Egbert, describe Bivens suits as a “disfavored judicial activity.” Indeed, the Court has signaled that it is eager to overrule Bivens — although Egbert doesn’t go quite that far.

In Hernández v. Mesa (2020), the Supreme Court held that the family of a Mexican child could not sue a Border Patrol agent who shot and killed their 15-year-old son — even if they could prove that the officer shot the child in cold blood and without provocation. The five justices who joined the majority opinion in Hernández concluded that it is “doubtful that we would have reached the same result” if Bivens were “decided today.”

Egbert echoes this view, stating that “we have indicated that if we were called to decide Bivens today, we would decline to discover any implied causes of action in the Constitution.” Thus, while Egbert puts off until another day the question of whether to overrule Bivens in its entirety, it’s not hard to see where this train is headed.

Egbert also makes explicit what was probably implicit in the Hernández decision — that Border Patrol agents in particular have total immunity from Bivens suits, and thus may not be sued for constitutional violations. “We ask here whether a court is competent to authorize a damages action not just against Agent Egbert but against Border Patrol agents generally,” Thomas writes, adding, “the answer, plainly, is no.”

More than that, Thomas announces a new rule that federal courts must apply in all Bivens lawsuits moving forward. The Court should reject the lawsuit if there is “any rational reason (even one)” to deny the claim.

In the past, the Court has looked to whether a new Bivens lawsuit “is different in a meaningful way from previous Bivens cases decided by this Court” to determine whether a good reason exists to deny the claim. Egbert suggests that if there are any differences between a new lawsuit and a previous one, that is a “rational reason” to toss out the new lawsuit.

As Sotomayor notes in dissent, both Bivens and Egbert involved similar excessive force claims brought against law enforcement. And the holding of Bivens was that any “federal agent acting under color of his authority” may be sued if they violate the Fourth Amendment. But Egbert denies Boule’s Bivens claim, largely because Boule’s claim involves a Border Patrol agent, while Bivens involved a claim against officers from the Federal Bureau of Narcotics, an agency that ceased to exist in 1968.

Egbert, in other words, can plausibly be read to forbid all Fourth Amendment lawsuits against federal officers who do not work for the Federal Bureau of Narcotics — which no longer exists! At the very least, Egbert means that federal judges must go hunting for any possible reason to deny a Bivens suit.