Supreme Court Says It's Very Cool, Very Legal For Federal Agents To Assault You
There's no way to sugar coat this shit — there are six conservative justices in control of the Supreme Court, and we are in for a fucking nightmare ride. This crew of nihilists is going to strip away our rights six ways from Sunday and swear they're doing it to protect us. So it is incumbent upon all of us to pay attention, particularly when, as here, there is something we could do about it if we pressured our legislators.
With that preamble, let's talk about what happened this morning at the Supreme Court, where all six conservative Justices handed down a decision in Egbert v. Boule which makes it much more difficult for Americans to recover when federal agents violate their constitutional rights. The case revolves a Bivens claim, so named for Bivens v. Six Unknown Agents, a 1971 Supreme Court case where the Court found an implied right of action against narcotics agents who violated Bivens's Fourth Amendment rights. An "implied right" is one that isn't created by statute, but is implied because WTF is the Bill of Rights for if there's no way to get made whole when the government violates them. Conservatives dislike Bivens claims because (a) they don't like civil liberties generally, and (b) they really don't like making federal agents personally liable for illegal shit they do on the job.
Okay, now if you were going to pick the executive agency that would be most likely to illegally enter a property and beat someone up, which agency would you pick?
Department of Homeland Security, right? Because of course.
Robert Boule, the plaintiff in this case, owns an "inn" in Washington on the border between the US and Canada. In 2014, Border Patrol agent Erik Egbert, seeking to interrogate a Turkish national, came onto Boule's property without a warrant and beat him up. Boule filed a grievance with Egbert's supervisors and a claim under the Federal Tort Claims Act, after which he faced retaliatory action from the CBP, up to and including static from the IRS.
Boule sued Egbert under Bivens, alleging violations of his First and Fourth Amendment rights. The trial court held that there was no recovery under Bivens, but the Ninth Circuit disagreed, finding an implied right of action to vindicate Boule's claims, essentially expanding the boundaries of Bivens to cover First Amendment violations as well as a slightly wider array of Fourth Amendment claims. But the conservatives are very much not down with making it easier for victims to recover, so they put the kibosh on this one — hard. In fact, they pretty much made it clear that they're going to dispense with Bivens altogether once we all calm down and get used to living in a country with universal open carry and no access to abortion.
Now Boule has a, ummm, complicated relationship with ICE and CBP: Sometimes he's a paid informant, sometimes he takes money to illegally ferry people across the border. The fact that he's not a great guy is irrelevant here, though, because you don't have to be an upstanding citizen to have civil rights. That's part of the deal in a civil society. And the fact that Justice Clarence Thomas goes on for several pages trying to make Boule look as unsympathetic as possible is a big tip off that he's trying to distract from the reality that he's giving a green light to federal agents to slap us all around. And after dirtying up Boule, he moves on to smearing liberal "activist" judges of yore.
"Now long past 'the heady days in which this Court assumed common-law powers to create causes of action,'” Justice Thomas writes, "we have come 'to appreciate more fully the tension between' judicially created causes of action and 'the Constitution’s separation of legislative and judicial power.' At bottom, creating a cause of action is a legislative endeavor." [Citations omitted.]
He's saying that the days of the courts reasoning that there can be no right without a remedy are long over, and if we want to be able to sue government agents who abuse us, we have to get our elected officials to pass a law creating an explicit cause of action. And good luck with that when the Senate is rigged to shit in favor of little red states and we're all flooded with copaganda and screams about "defunding the police!"
"Nonetheless, rather than dispense with Bivens altogether, we have emphasized that recognizing a cause of action under Bivens is 'a disfavored judicial activity," Thomas writes. "When asked to imply a Bivens action, 'our watchword is caution.'”
Which is bullshit, because this case is basically the same fact pattern as Bivens, and gesturing vaguely in the direction of border security and claiming that it totally changes everything is a massive cop out. At least Justice Neil Gorsuch, in a concurrence, has the decency to be honest about what they're doing.
"Candidly, I struggle to see how this set of facts differs meaningfully from those in Bivens itself," he writes, adding later that "I would only take the next step and acknowledge explicitly what the Court leaves barely implicit. Sometimes, it seems, 'this Court leaves a door ajar and holds out the possibility that someone, someday might walk through it' even as it devises a rule that ensures 'no one . . . ever will.'”
Justice Sonia Sotomayor, writing in dissent for the three liberal justices, agrees that the circumstances here are indistinguishable from Bivens, and calls out the six conservatives for discarding all precedent simply because they finally can.
"If the legal standard the Court articulates to reject Boule’s Fourth Amendment claim sounds unfamiliar, that is because it is," she notes. "Just five years after circumscribing the standard for allowing Bivens claims to proceed, a restless and newly constituted Court sees fit to refashion the standard anew to foreclose remedies in yet more cases."
"By nevertheless repeatedly amending the legal standard that applies to Bivens claims and whittling down the number of claims that remain viable, the Court itself is making a policy choice for Congress," Sotomayor concludes. "Whatever the merits of that choice, the Court’s decision today is no exercise in judicial modesty."
But judicial modesty, i.e. deference to precedent and not using the court to make policy, is not how shit is going to go down from here on out. So now all of us have to learn about Bivens claims, and qualified immunity, and a bunch of shit civilians took for granted, because if we don't light a fire under our elected representatives to pass a law, we're all going to find ourselves getting manhandled by jackbooted thugs and locked out of the court house.
Shit, dude, I wish I had better news. Vote like your life depends on it, because it does.
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.