Supreme Court wrestles with when federal police may be sued for excessive force

John Fritze

WASHINGTON – The Supreme Court struggled Wednesday with the question of when federal police may be sued for excessive force – and whether Congress or the courts should answer that question – in a case involving an incident on the Canadian border. 

The dispute between the owner of the Smuggler’s Inn, located feet from the northern border, and a U.S. Customs and Border Protection agent came before the justices at a time when lower courts and lawmakers have wrestled with the issues of police liability and accountability.

Under past Supreme Court decisions, Americans have a very narrow ability to file a lawsuit against federal police for 4th Amendment violations involving excessive force. The arguments Wednesday, which appeared to blur the court's traditional ideological lines, focused on whether the high court should allow those suits in more circumstances.

People may file lawsuits against state and local police under a federal law passed in the late 19th Century, but the law doesn’t apply to federal law enforcement. Claims against federal officers are instead filed based on a Supreme Court precedent from 1971, Bivens v. Six Unknown Named Agents, in which federal police searched the home of a New York City man without a warrant.

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But the Supreme Court has been hesitant to permit those lawsuits if they raise new claims under new circumstances, arguing that it is Congress that should authorize those lawsuits. Fourth Amendment advocates say that has created a situation where it’s virtually impossible to bring claims against federal law enforcement officers.

Associate Justice Clarence Thomas got directly to that point during arguments. 

"Aren't you up against the fact that we have declined to apply or extend Bivens in recent history?" Thomas asked the attorney representing the inn's owner. "We've almost universally declined to expand it into new contexts."

The attorney, Felicia Ellsworth, countered that the altercation at the Smuggler's Inn was substantially similar to what took place in the Bivens case. 

The Supreme Court on March 2, 2022.

A major part of the argument Wednesday centered on which federal police agencies may be liable for a Bivens claim, and whether those considerations turn on what type of law enforcement work they are performing – say, searching for drugs in a home rather than trying to stop illegal crossing at the border. 

"I thought that none of them, constitutionally, can use excessive force," Associate Justice Sonia Sotomayor said. "I don’t understand why this is a new context."

The criticism is similar to concerns raised about qualified immunity for local police because it opens a debate about how much liability police should face for jobs that often involve split-second decisions. Qualified immunity is the legal doctrine that protects officers from liability for civil rights violations in many circumstances. 

In Wednesday's case, Robert Boule, the owner of the inn, said the Customs agent used excessive force by pushing him to the ground. The agent, Erik Egbert, was on Boule's property at the time and seeking to speak with one of the inn's guests. Boule had intervened and asked Egbert to leave. 

Boule also claimed that Egbert violated his First Amendment rights by retaliating when he called his superiors at the agency to complain about the incident. He said that Egbert responded by asking the IRS to investigate the Smuggler’s Inn.

A federal district court dismissed the case against the CPB agent. But the California-based U.S. Court of Appeals for the 9th Circuit reversed that decision. The high court's decision in the case is expected before June.