A Border Patrol Agent Assaulted Him and Violated His First Amendment Rights. He May Never Get To Sue.

The federal government should be able to prosecute the people for their violations of rights. It is this premise that has prompted a spate petitions at the U.S. Supreme Court pertaining law enforcement officers who violate clearly defined law. The victims are seeking recourse.

It is possible for a person to lose their ability to seek recourse.

Two of these cases are still being considered by the Court. First, a federal agent who created a fake sex trafficking network and held a teenager on false charges for 2 years. A Department of Homeland Security agent tried to kill a male friend of his. Both cases were decided by federal courts. The two defendants, both government agents, violated established law. They are however protected under absolute immunity so cannot be sued solely for their affiliation with the federal government.

But one similar case has worked its way up to the justices, who are scheduled to hear it on March 2—though it appears they may be poised to make it even more difficult for victims of federal government abuse to achieve any meaningful remedy when their rights are violated.

U.S. Border Patrol Agent Erik Egbert accompanied a man from Turkey to a bed & breakfast in Washington. Egbert assumed that the Turkish man who was accompanying him to America illegally because of the fact that it was near the Canadian border.

But he was mistaken. Egbert refused to let Robert Boule leave his private property and pursued him. Egbert then pushed Boule in a car, and finally to the ground. This resulted in serious injuries that needed to be treated. Boule subsequently filed a complaint with Egbert’s supervisor, which the Border Patrol agent countered with threats to sic the IRS on him with a business audit—a promise he made good on.

Boule is still waiting for his court date after he spent nearly eight years asking for permission to present before a jury. So far, he has been successful. Both the U.S. Court of Appeals 9th Circuit sided strongly with Boule. He said that he should have an opportunity to sue Egbert civilly for violating his First and Fourth Amendment rights.

This shouldn’tIt would be quite surprising. Under a 1971 Supreme Court precedent—Bivens against Six Unknown Named Federal Bureau of Narcotics Agents—federal agents may be sued when they violate someone’s rights. The high court has been diluting its decisions in significant ways in recent years. It now allows federal agents to be sued. It is notA federal judge may sue if the “special factors counselling hesitation” is identified. It is easy to see how such a subjective standard could be misinterpreted.

It was that standard that shielded Officer Heather Weyker, who conjured the sex trafficking ring, and DHS Agent Ray Lamb, whose gun jammed when he attempted to shoot the man he had a feud with. The legal doctrine of qualified immunity protects officials in government from civil liability when their conduct is not “clearly established” by a court decision. The courts confirmed that Weyker, Lamb had violated the law. They were still denied QualifiedThey were granted immunity Absolute immunity and can’t be sued simply because of their status as a federal employee—something that should signify a responsibility to protect the public, not a green light to violate their rights without fear of accountability.

Maybe as an indication of Boule’s unprofessional conduct, he failed to meet the minimum standard set by Weyker & Lamb. He is asking the Supreme Court to lower that bar. Boule’s decision would “undercut Border Patrol agents ability to fulfill their fundamental mission of securing border, enforcing immigration laws and protecting national security,” wrote the government in its review petition. It was written as though immigration officers had to reserve the right of assaulting people or using their power illegally in order to perform their job effectively.

Anya Bidwell is an attorney at The Institute for Justice. This public-interest law firm filed an article titled “The stakes” AmicusThis week, Boule will be briefed. Egbert would win, and that would make it no BivensIn the majority of cases, this remedy is available. Federal police officers and federal employees would be granted absolute immunity.

Based on the Supreme Court’s recent jurisprudence on the issue, it appears that scenario may be the likely outcome—giving federal agents carte blanche to break the same rules they are meant to uphold.