Dan King
Dan King · January 27, 2022

ARLINGTON, Va.—Yesterday, the Institute for Justice (IJ) filed an amicus brief in the U.S. Supreme Court in support of a small business owner’s right to sue a federal agent who came onto his property, shoved him and threatened him with an IRS investigation. 

Robert Boule owns a small bed and breakfast along the Canadian border in Washington. One day in 2014, he received a visit he wasn’t expecting. Customs and Border Protection agent Erik Egbert followed one of Boule’s guests onto his property. Officer Egbert thought the guest, who had arrived from Turkey, might be in the country illegally, so he began questioning him about his immigration status. Boule twice asked Officer Egbert to leave the property, but instead the agent shoved Boule against his car and then knocked him to the ground, causing back injuries. Following the altercation, it was confirmed that Boule’s guest was in the United States legally, so Officer Egbert left. Later on, when Boule filed a complaint with Egbert’s supervisor, Egbert threatened to retaliate by having the IRS investigate and audit his business.  

The newly filed amicus brief argues that Boule should be entitled to sue for damages under what is called a Bivens claim. The name comes from a 1971 Supreme Court case called Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, which established a cause of action to receive damages when a federal agent violates an individual’s rights. 

“The actions taken by Officer Egbert clearly violated Boule’s First and Fourth Amendment rights, and he should be allowed to vindicate his constitutional rights by suing the officer for damages,” said IJ Law and Liberty Fellow Daniel Rankin, one of the authors of the amicus brief. “A federal badge should not be an impenetrable shield from accountability for a government worker’s actions.” 

IJ’s brief argues that being able to sue a federal official for violations of constitutional rights is consistent with both this nation’s history and with congressional recognition of the Bivens cause of action. The Supreme Court’s reluctance to allow these cases to proceed goes against everything we know about the role of the judiciary in safeguarding individual rights. 

“Officers who are empowered by the federal government should not be entitled to violate the federal Constitution,” added IJ Attorney Patrick Jaicomo, another of the brief’s authors. “Yet this is exactly what we are seeing today. Boule is not the only one prevented from being able to vindicate his rights. We’re seeing this all across the country, including in Texas, where a man is fighting to sue a DHS officer who tried to shoot him to death and in Minnesota, where a teen was jailed for two years all because a federal task-force officer lied to protect her informant. You’ve heard of qualified immunity. When it comes to federal officers these days, they are shielded by a de facto absolute immunity.” 

In 2018, a district court sided with Boule on the First Amendment Bivens claim, but with Officer Egbert on the Fourth Amendment Bivens claim. The case was then appealed to 9th Circuit Court of Appeals, which decided Boule was entitled to pursue both his First and Fourth Amendment Bivens claims. In 2021, Officer Egbert successfully petitioned the Supreme Court to hear the case, with the oral arguments scheduled for March 2

As part of its Project on Immunity and Accountability, IJ has two other cert petitions pending in front of the nation’s highest court that also deal with the issue of federal police immunity. In Byrd v. Lamb, a Department of Homeland Security agent was captured on video threatening to shoot Kevin Byrd in the head and pulling the trigger of a loaded gun, which thankfully jammed. Kevin did nothing wrong.  Mohamud v. Weyker involves a teenage girl in Minnesota named Hamdi Mohamud, who was framed by a police officer deployed by a federal task force, and arrested for crimes she did not commit. Both Kevin and Hamdi lost at the courts of appeals, with their cases thrown out even before they had their chance to prove their claims. IJ is petitioning the Supreme Court to reverse both rulings.