U.S. Supreme Court

Supreme Court will decide whether innkeeper can sue border agent for First Amendment damages

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The U.S. Supreme Court agreed Friday to decide whether the owner of a bed and breakfast establishment called the Smugglers Inn can sue a border patrol agent for damages under the First and Fourth Amendments.

The high court accepted the case of innkeeper Robert Boule, who says a U.S. Customs and Border Patrol agent shoved him to the ground and then retaliated after Boule reported the incident to superiors, report Law360, SCOTUSblog and Courthouse News Service.

At issue is the reach of the cause of action for damages under the Fourth Amendment, allowed against federal agents by the 1971 case Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.

Following the decision, the Supreme Court has allowed Bivens claims for damages under the Fifth and Eighth Amendments, according to SCOTUSblog coverage. But in 2017, the court cautioned that expanding the Bivens remedy is disfavored.

The cert petition outlines three questions in Boule’s case. The court accepted the first two.

The first question is whether a Bivens cause of action is allowed for First Amendment retaliation claims against federal officers. Federal appeals courts are split 6-1 on the issue, with the majority holding that no cause of action exists. The 9th U.S. Circuit Court of Appeals at San Francisco was the lone appeals court to issue a contrary decision when it ruled in Boule’s case.

The second is whether a Bivens cause of action exists for Fourth Amendment claims against federal agents carrying out immigration-related functions. Federal appeals courts are split 3-1 on the issue, with the 9th Circuit being the only court supporting the claim.

The Supreme Court declined to decide a third question: whether to reconsider the Bivens precedent.

Boule is a bed and breakfast owner in Blaine, Washington, near the Canadian border. He had sued over a March 2014 incident, according to the 9th Circuit decision for Boule. Boule says he intervened when a border patrol agent approached a vehicle carrying an arriving guest. Boule told the agent to leave and then stepped between the agent and the car.

Boule alleges that the agent, Erik Egbert, shoved him against the car. When Boule didn’t move away, Egbert grabbed Boule and pushed him aside and onto the ground, Boule alleges. Boule complained to Egbert’s superiors. In retaliation, Egbert allegedly asked the Internal Revenue Service to look into Boule’s tax status.

The case is Egbert v. Boule. The SCOTUSblog case page is here.

See also:

ABAJournal.com: “Should federal officers get immunity for lies and beatings? SCOTUS is asked to decide”

ABAJournal.com: “Supreme Court bars damages suit for border agent’s cross-border shooting that killed Mexican teen”

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