by Erwin Chemerinsky
Rights only have meaning if there are remedies when they are violated, but the Supreme Court last Wednesday once more limited the ability of injured individuals to sue when their constitutional rights are infringed. The court has made it virtually impossible for those whose rights are violated by federal officials to sue, no matter how egregious the constitutional violation or the injury.
The federal government has sovereign immunity and cannot be sued for monetary damages unless there is a federal statute expressly authorizing the suit. No such statute exists to allow the federal government to be sued for constitutional violations. Typically, the only recourse for a person whose rights have been violated is to sue the federal officer who caused the harm.
Although there is a federal statute authorizing suits against state and local officials who violate the Constitution, no such law exists to permit federal officials to be sued. In 1971, in the landmark case, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the Supreme Court held that a federal official who violates the Constitution can be sued for monetary damages notwithstanding the absence of a statute expressly permitting this action.
In that case, agents of the narcotics bureau went into Webster Bivens’ house without a warrant and subjected him to a humiliating search that clearly violated the Fourth Amendment. The court ruled that Bivens could sue the agents who violated his rights for monetary damages. Subsequently, the court said that such suits against federal officers could be brought when they engage in unconstitutional discrimination or impose cruel and unusual punishment.
But since 1980, the court has repeatedly and greatly restricted the availability of such suits. Wednesday’s decision in Egbert v. Boule further limits this right to sue — this time for Fourth Amendment violations for illegal searches and seizures.
Robert Boule owns a bed-and-breakfast called the Smuggler’s Inn in Blaine, Washington, near the Canadian border. Erik Egbert, a U.S. Border Patrol agent, followed Boule and a passenger in his car to the inn. According to Boule’s complaint, Boule asked Egbert to leave, but Egbert refused, became violent and threw Boule to the ground. Egbert then checked the immigration paperwork for Boule’s guest and left after finding nothing illegal.
Boule filed a grievance against Egbert with the border patrol. Boule alleges that Egbert then retaliated by contacting the Internal Revenue Service and state agencies, prompting an investigation and audit of Boule’s tax returns. Boule sued Egbert for excessive force in violation of the Fourth Amendment and for violating the First Amendment by engaging in retaliation against him for his complaint.
The Court of Appeals for the 9th Circuit held that these allegations were sufficient to allow Boule to sue. But Justice Clarence Thomas, writing for the majority in the 6-3 opinion, said that Bivens suits are “a disfavored judicial activity.” As such, he wrote, these kinds of suits should not be allowed at all in the border policing context.
This decision further shields border agents who commit grievous harms from accountability to the victims of their actions. Just two years ago, the court held that a border agent in the United States could not be sued when he fired his gun across the Mexican border and killed a teenage boy who was playing on the other side.
The court’s refusal to allow federal officers to be sued for monetary damages means that there will be no remedy for people whose rights have been violated. Several years ago, the Court of Appeals for the District of Columbia Circuit dismissed a case by 12 women who had been raped or suffered severe sexual harassment while in the military. That court held that no Bivens suits are available for those whose rights are violated during military service.
Monetary damages are essential to compensate injured victims and to deter wrongdoing. As Justice Sonia Sotomayor wrote in dissent, the court’s decision “will strip many more individuals who suffer injuries at the hands of other federal officers, and whose circumstances are materially indistinguishable from those in Bivens, of an important remedy.”
But as Justice Neil Gorsuch noted in a separate opinion on Wednesday, Congress can easily fix this problem. It could pass a statute — like the one authorizing suits against state and local officials — that expressly permits federal officers to be sued when they violate the Constitution.
Such a law should be unnecessary because courts always should be able to provide a remedy when rights are violated. But the conservative majority’s refusal to give victims the ability to seek redress makes it imperative that Congress do so.
