By Tim Cushing
The Ninth Circuit Court of Appeals continues to do what other circuits far too often won’t: protect citizens from their government. The Ninth Circuit is the best place to bring allegations of rights violations. It only grants immunity in 42% of cases it handles, compared to the Fifth Circuit, where cops and their qualified immunity triumph 64% of the time.
This seems to irritate the Supreme Court, which often finds itself overturning decisions bubbling up from the Ninth. But every win for Americans is another chance to establish precedent making it easier for future victims to obtain redress from courts anywhere in the nation.
This recent decision [PDF] by the Ninth will probably once again raise the hackles of the Supreme Court. This one allows a plaintiff to sue federal officers for rights violations — something the Supreme Court has repeatedly made more difficult to accomplish. In 2017, the Supreme Court said non-US persons couldn’t sue federal officers for violating their rights. It reinforced this decision in 2019, rejecting a lawsuit brought by the family of a Mexican teen who was shot ten times by a Border Patrol agent in response to some alleged rock throwing. The Border Patrol agent was on the US side of the border. His bullets traveled across the border and into the Mexican teen, killing him in Mexico. The Supreme Court shrugged and said it was unfortunate the teen died where he did. If he had only managed to die on the US side of the border, he might have had a case.
This case doesn’t end in death. But it does involve federal border security and violated rights. Here’s the summary of the events leading to the lawsuit:[Robert] Boule is a United States citizen. He owns, operates, and lives in a small bed and breakfast inn in Blaine, Washington. The back property line of the land on which the inn is located touches the United States-Canada border. On March 20, 2014, Customs and Border Patrol Agent Erik Egbert stopped Boule while he was running errands “in town” and asked him about guests staying at the inn. Boule told Egbert that he had a guest arriving that day from New York who had flown in from Turkey the day before. Boule told him that two of his employees were en route to pick up the guest at SeattleTacoma (“Sea-Tac”) International Airport, about 125 miles south of Blaine. Later that day, Egbert waited in his border patrol vehicle near the inn. The entrance to the inn is on a road at the front of the property. When the guest arrived, Egbert followed the car carrying the arriving guest into Boule’s driveway.
Egbert got out of his vehicle and approached the car. From the front porch of the inn, Boule asked Egbert to leave. When Egbert refused, Boule stepped between Egbert and the car and again asked him to leave. Boule recounts that Egbert then shoved him against the car. When Boule still did not move away from the car, Egbert grabbed him and pushed him aside and onto the ground.
Egbert then opened the car door and asked the guest about his immigration status. Boule made a 911 call to request a supervisor, which Egbert also relayed over dispatch. A supervisor and another agent arrived in response to the call. After concluding that the guest was lawfully in the country, the three officers departed. Boule later sought medical treatment for injuries to his back.
That’s the Fourth Amendment violation. There’s also a First Amendment violation.
After Boule complained to Egbert’s superiors about the incident, Egbert retaliated against Boule. Among other things, Egbert contacted the Internal Revenue Service, asking the agency to look into Boule’s tax status.
Bringing a Bivens case against a federal officer is tricky. Federal officers are given an extra level of protection from lawsuits. Qualified immunity is pretty tough to dodge, given the reliance on (ever-decreasing) precedential rulings declaring specific actions to be rights violations. In the federal context, the small crack in the immunity door disappears almost completely. More matching specifics are needed to move a case past the immunity roadblock and only certain rights violations are recognized in the Bivens context.
Here’s how the Supreme Court sees it: allegations that fall into this broad set of variances may be considered “new” and an impermissible extension of Bivens.
Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one . . . [:] A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.
Good luck with that, plaintiffs. But this plaintiff’s case will move on, greatly aided by the fact that he’s a US citizen. Unlike the cases cited by the government, Boule is a legal resident of the United States. There’s only one factor that separates this from other successful Bivens lawsuits, the court points out.
The claim against Egbert is a conventional Fourth Amendment claim, indistinguishable from countless such claims brought against federal, state, and local law enforcement officials, except for the fact that Egbert is a border patrol agent.
The court says the fact that Egbert is a border patrol agent does not excuse him from this lawsuit, even if a comparable case involved an FBI agent. The plaintiff can continue suing Egbert over his Fourth Amendment violations.
But the court goes further, extending Bivens to cover both the Fourth Amendment violation and an alleged First Amendment violation.
Boule also alleges that Egbert retaliated against him for exercising his First Amendment right to complain to Egbert’s superiors about his conduct at the inn. We have previously recognized a Bivens claim in the First Amendment context, see Gibson v. United States, 781 F.2d 1334, 1342 (9th Cir. 1986), but the Supreme Court has not yet done so.[…]
However, we find no special factors that counsel hesitation in extending a Bivens remedy to this new context. There is even less reason to hesitate in extending Bivens here than in the context of Boule’s Fourth Amendment claim. Retaliation is a well-established First Amendment claim, available against governmental officers in general.
And, while Egbert may find a way to prevail on the Fourth Amendment allegations by discussing the latitude granted to him as a nominal securer of the nation, he’s going to have to get really creative to explain why he decided to retaliate against a citizen’s protected speech.
With respect to [the Fourth Amendment] claim, Egbert can legitimately argue that his actions at the inn were performed in connection with his official duties. He cannot say the same thing here, for his retaliation had no relation to, or justification based on, his duties as a border patrol agent.
This ruling increases the chances of success in lawsuits brought against federal agents and officers, and expands the minimal coverage to include rights violations that haven’t previously been addressed in this circuit. But, because it does this, there’s no chance this won’t be appealed. The Supreme Court doesn’t like lower courts expanding the narrow Bivens confines, so this has a good chance of getting overturned if the top court picks it up. Until then, it’s still a win for Boule and other US citizens. And maybe this win will remain on the books if the Supreme Court feels it’s been cutting the government way too much slack in cases like these.