There’s a doctrine called sovereign immunity, which goes back to the concept that the king cannot be hauled into court no matter what. In today’s terms, it means that you can’t sue a state or the federal government if one of its workers, say a state police officer or an FBI agent, violates your rights and injures you.
But that isn’t the whole story. Under a federal law called Section 1983, you can sue state government employees who “under color of law” violate your civil rights. This was part of the 1871 Civil Rights Act (the “Ku Klux Klan” law), and it is a powerful remedy against state officials who abuse their authority and cause injuries.
But there’s a hitch called “qualified immunity,” a court-created doctrine that according to the Supreme Court’s 1982 Harlow v. Fitzgerald decision protects the employee from damages liability unless he or she violated “clearly established statutory or constitutional rights of which a reasonable person would have known.”
As for private claims against federal employees, the 1971 case of Bivens v. Six Unknown Named Agents involved an unreasonable search and seizure by federal narcotics agents. The Supreme Court ruled, 6-3, that if a federal employee commits an illegal search or uses excessive force, an injured individual has the right to sue for violation of the Fourth Amendment. The Court later expanded the scope of so-called “Bivens” claims by adding rights protected by the Fifth Amendment.
Section 1983 and the Bivens decision, combined, are designed to hold government employees accountable if they violate an individual’s constitutional rights. Qualified immunity protects state employees to a considerable degree, but it does not create a free pass. Bivens and later cases are not an invitation to sue federal employees, but they offer a degree of deterrence against unconstitutional conduct and protection for its victims.
The qualified immunity doctrine has come in for a lot of criticism recently, especially in police misconduct cases, but there is no sign that it’s about to go away. Section 1983 claims against state officials and employees are therefore difficult to win.
On June 8, the Supreme Court decided Egbert v. Boule, a decision that practically limits the Bivens doctrine to people named Bivens. By a vote of 6-3, the Court refused to allow a private civil action against a customs official for using excessive force in violation of the Fourth Amendment The case has fascinating facts and, more important, demonstrates yet another split between conservative and liberal justices.
Robert Boule operates “Smuggler’s Inn,” a bed-and-breakfast located in Blaine, Washington, on land that straddles the American-Canadian border. Over the years, the inn has been a popular stop-off for drug smugglers. What his guests didn’t know was that Boule the innkeeper had for some time been wearing another hat, serving as a paid, confidential informant for border protection authorities and Immigration and Customs Enforcement (ICE). Boule’s “business plan” was to charge for accommodations and a shuttle service on the one hand, and then collect a bounty for turning his guests in to the authorities, on the other.
On March 20, 2014, Boule notified ICE Agent Erik Egbert that a Turkish national was on his way from New York to Smuggler’s Inn. Egbert showed up that afternoon looking for the latest guest, and Boule told him to leave. Egbert declined and instead picked Boule up and threw him against his SUV, injuring him. Boule sued Egbert for violating his constitutional rights.
The Supreme Court rejected Boule’s “Bivens” claim on the grounds that Congress, not the Court, is better situated to decide whether someone in his position should be allowed to sue Egbert for damages. After several pages of explaining why the issue is “legislative” rather than judicial, and in the context of border security highly sensitive, Justice Thomas tells us what the six justices in the majority really think: “If we were called to decide Bivens today, we would decline to discover any implied causes of action in the Constitution.” One of the six, Justice Gorsuch, wrote a concurring opinion saying there is no such thing as a situation where the Court will be better equipped than Congress to decide whether an individual should be allowed to sue a federal employee for violating his constitutional rights.
Justice Sotomayor, joined by Justices Breyer and Kagan, dissented from denying Boule a civil remedy for his injuries. “A restless and newly constituted Court,” she says, has decided to change the rules without admitting it is doing so, even though no meaningful factual difference exists between Bivens and Boule.
The qualified immunity and Bivens line of cases may fall outside the Supreme Court’s hot-button “culture wars” decisions— rulings on abortion, separation of church and state, and the like—but they are important because they deal with rights of individuals who fall victim to official abuse of authority. With the Boule case, we can see once again the direction in which the Roberts Court is taking our country. Whether it’s the Trump ban on immigration from Muslim countries, gerrymandering, or election laws, the government usually wins, and the individual loses.
But not always. I await the Court’s forthcoming guns decision with dread.