Recent Egbert decision allows misconduct to fester

Justice in democracy, as America is formed and forged, requires that fundamental rights have remedies. When such rights and remedies are contested, relevant facts must see public light. When necessary, facts are presented to juries, not judges. It is how both small and large problems are presented, addressed and resolved.

The alternative is that promised equal protection, due process and constitutional privileges and immunities are degraded. Constitutional injury is normalized. Official abuse and misconduct fester.

The doctrine of qualified immunity is the most obvious example where federal courts frequently disappoint these expectations. Through judge-made rules, iterations of the rules, and iterations of the iterations, judges, encouraged by law enforcement interests, repetitively take facts away from juries, and rights and remedies from the injured.

It is both bad law and bad policy because juries, although not always syncratic or sound in their determinations, are generally faster on the uptake than judges regarding important subjects such as whether police should be permitted to knee a prone subject on the neck, conduct a high speed vehicle chase in a populated area, or reflexively drunk-tank someone experiencing diabetic shock.

Due to advances in video, then cellphone technology, it is now common to see abusive police practices digitally displayed – patterns and practices which should have been prohibited and trained out of professionalized policing decades ago. And they might have been if judges, rather than interposing their own policy inclinations, competently directed relevant testimony to attentive fact finders.

Last week’s Supreme Court’s decision in Egbert v. Boule (2022) is not about qualified immunity, but rather a Bivens action – an individual’s right to seek redress against a misbehaving federal agent.

Different doctrine, same problem. Egbert is disheartening because the court returns to its peculiar tradition of selectively shaving and trimming rights and remedies, slanting towards and privileging law enforcement.

Egbert overturns an appellate panel’s ruling otherwise permitting an individual’s attempt to vindicate a physically abusive and retaliatory detention and investigation by a federal border patrol agent, otherwise violations of his First and Fourth Amendment rights under the Constitution.

Factually, the case presents a colorful backdrop. The plaintiff, Robert Boule, owned “Smuggler’s Inn,” a bed and breakfast which abuts and partially spills over Canada’s border with the state of Washington. Unsurprisingly, both smugglers and immigration authorities have at times sought plaintiff’s favor.

On this occasion, however, it concerned but one border patrol agent wearing a proverbially heavy badge, pushing and shoving plaintiff around the inn’s parking lot and onto the ground, and, after not finding evidence he was looking for, initiating a criminal background check of Boule’s license and an IRS audit.

Boule brought a Bivens claim against the officer. In the case for which the claim is named, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971), six defendant agents forced their way into Webster Bivens’ New York home without a warrant, handcuffed him in front of his wife and children, arrested him on narcotics charges, interrogated and strip searched him.

Bivens’ facts resemble an abusive search conducted by Chicago police a decade earlier, described in Monroe v. Pape (1961), the seminal case by which the high court breathed new life into the Civil Rights Act of 1871. The civil lawsuit also enabled legislation now known as Title 42 U.S.C. § 1983. The Monroe court accomplished this by taking a judicially imposed doctrinal knee off the statute’s neck, the Court’s previously restrictive, courtroom-closing misinterpretation of the meaning of “under color of law.” The Chicago police’s misconduct, even though formally prohibited by Illinois law, was, the court decided, “under color of law” – thereby opening to plaintiff Monroe the federal courtroom doors.

The one key factual dissimilarity between the two cases is that Monroe was abused by city officers, Bivens by federal officers. Given the overall congressional intent underpinning the 1871 Act, along with the closely related post civil rights amendments – particularly the 14th – it made no sense that Monroe, but not Bivens, should have a remedy.

Justice William J. Brennan Jr., writing for a 6-3 majority, correctly held that Bivens had a constitutional damage remedy similar to the one Monroe had under section 1983. By contrast, the three dissenting judges, each raising separation of powers concerns, asserted it was up to Congress, not the court, to expressly create such a remedy; therefore, the court should not so expand its own power relative to Congress.

Dissenting Justice Harry A. Blackman additionally alluded to “the flood” of litigation that followed Monroe. It might be added that for 90 years between enactment and Monroe and given the court’s unforgivably narrow doctrines, very few cases made it into federal appeals courts. So releasing a pent up dam is apt description. Justice Blackmun tweaked the familiar slippery slope argument, registering his concern Bivens would trigger “another avalanche of new federal cases.” It didn’t. The slope wasn’t slippery. No flood. No new snow.

Returning to Egbert, the gist of Justice Clarence Thomas’ majority opinion is that, after Bivens and two other cases similarly establishing federal remedies, the court has trimmed its sails. The Bivens dissenters’ concern with separation of powers has now become the prevailing angle and predominating concern. Symmetry is lost. Rights that uncontroversially might have allowed for remedies under section 1983 now fall short when brought under Bivens.

Consistent with these new coordinates, Thomas’ opinion narrowly interprets each subsequent Bivens claim to test whether it narrowly falls within the now limited Fourth Amendment circumstances stated in Bivens or covers an area that might better be addressed by Congress, albeit better in a justice’s opinion.

It is said history first presents itself as tragedy, then farce. Three years ago, in Hernandez v. Mesa (2019), the Supreme Court ruled 5-4 that the family of a 15-year-old fatally shot by a border patrol agent had no damage remedy because cross-border shootings, according to Justice Alito’s majority opinion, lay only under purview of Congress and the president. In Egbert, the same solicitousness toward foreign policy and separation of powers concerns are now made in the context of an agent roughing up a U.S. citizen in his business’ parking lot, and whose license plate reads “SMUGLAR.” It is the lofty rhetoric of legal reasoning and choke-holding of common sense.

Justice Gorsuch’s Egbert concurrence, by contrast, would push further, following Nietzsche’s advice that, when something appears to be slipping, give it a shove. Similar to Thomas, Gorsuch sees the issue as a zero-sum contest between Congress and the court. But, according to Gorsuch, the Court should abolish Bivens altogether and give Congress back its “ill-gotten gain.”

It is a view Gorsuch holds inconsistently. From this analytic viewpoint, qualified immunity should unqualifiedly count as judicial booty. Yet, the clear pattern among similarly situated conservative federal judges is that separation of powers concerns awake only when federal courts open their doors to civil rights plaintiffs, not when they slam them shut.

Such jurisprudence, focused as it is on abstract constitutional architecture, rather than the case in controversy before the justices, selectively imposes a trivial “Congress didn’t say `Simon says:’” gaudiness on a plaintiff bringing a Bivens claim. Regarding section 1983 claims, by contrast, the jurisprudence inconsistently skips that step and creates a different judge-created rule: “an appellate court in your circuit didn’t previously say `Simon says: a plaintiff can recover on such a claim’.”

Justice Sonia Sotomayor, joined by Justices Stephen Breyer and Elena Kagan concurred in part, dissented in part. The Egbert dissent’s main thrust is that federal courts should not doctrinally tinker and peck away at Bivens. Rather, maintaining Bivens plays” a critical role in deterring unconstitutional conduct by federal law enforcement officers.”

On this main point, the dissent is correct. Given the importance of the

1871 Act and, in particular, the 14th Amendment, the court’s default doctrine shouldbe that fundamental constitutional rights have primary importance. Because they are so important, they require appropriate remedies – typically a damage remedy.

This is not an infringement on Congress’ power. It is, rather, a clear expression and elaboration of the post-bellum Congress’ seminal work in founding a system of constitutional torts. A regime designed to respect and protect each person’s freedom against official misconduct and abuse. It is at the heart of America’s version of ordered liberty, an idea of freedom forged from bloody civil war.

It would additionally be a valid expression of stare decisis, given the 6-3 decision in Bivens. Alas, among the current crop of conservative justices, stare decisis is a doctrine more venerated in visits to senators’ offices during pending confirmation hearings than actually animating controversial judicial opinions.

A little more stare decisis or, even better, justices getting out of the

42nd Congress’ way, would be a welcomed conservative act of often exalted, but less often experienced “judicial restraint.”