Civil liability of ICE and border patrol agents for excessive force

Challenging cases can bring gratification. Yet they can also lead to frustration and a common lament, "Why did I take this case?" Case selection is sometimes the most important part of a plaintiff's practice. 

Civil rights cases are challenging enough. Federal cases are often defended by the United States Attorney's Office. State cases are defended by seasoned governmental lawyers and private law firms talented enough to earn the business. And now, one area of civil rights cases has quietly become exponentially more difficult, the Bivens action and liability of federal agents for excessive force. 

Recent events have caused some to question the propriety and extent of force used by federal agents. When federal agents use excessive force, victims and their families naturally turn to the nation's courts and civil rights laws for accountability. However, in 2022 the Supreme Court issued its ruling in Boule v. Egbert. The decision was largely overshadowed by anticipation of the Court's decision overruling Roe v. Wade 16 days later. Boule largely foreclosed civil liability against ICE, Border Patrol, and similar federal agents for excessive force causing injury and even death. 

Historically, the first federal civil rights laws did not impose liability on federal agents. Congress had different concerns at the time. Enacted in the aftermath of the Civil War, these laws responded to congressional findings that revealed some state government officials were facilitating and even fomenting post-war violence against the formerly enslaved.

In response, Congress passed the Civil Rights Act of 1871, also known as the Ku Klux Klan Act. The act focused civil liability on any person acting "under color of any law . . . of any State" who violates the constitutional rights of another person. State and local law enforcement act under color (meaning authority) of the state laws they enforce. Therefore, this language shows congressional intent to address conduct of state officials only, primarily state and local police that violate the civil rights of other people.

One hundred years later, in 1971, the Supreme Court recognized a damages remedy against federal agents. In Bivens v. Federal Bureau of Narcotics, federal narcotics agents raided Webster Bivens' apartment in Brooklyn, New York, handcuffed him in front of his wife and children, interrogated, arrested and strip-searched him. Criminal charges were filed but later dismissed.

Bivens filed his lawsuit against the federal agents alleging excessive force. By this time, Congress had renumbered the Civil Rights Act of 1871 as Title 42, Section 1983, of the United States Code. Because section 1983 applied only to state officials, the trial court dismissed Bivens' claim. The Supreme Court reversed, holding that federal courts may recognize a damages remedy directly under the Constitution when federal officers violate clearly established constitutional rights. For the next five decades, such lawsuits were known as Bivens actions. 

By 2022, the makeup of the Supreme Court had changed. The Court elected to hear the case of Boule v. Egbert. In Boule, the U.S. Border Patrol alleged Robert Boule was smuggling undocumented persons across the U.S./Canadian border. Boule operated a bed and breakfast in Washington State called the Smuggler's Inn. The vanity license plate on Boule's SUV was "SMUGLER."

U.S. Border Patrol Agent Erik Egbert saw Boule driving his vehicle with a passenger. Agent Egbert pulled over the vehicle. According to Boule, agent Egbert threw him against his SUV, then threw him onto the ground. Boule's passenger was a Turkish national. When Agent Egbert checked the man's immigration status, his paperwork was in order. Agent Egbert then left without further incident.

Boule filed a Bivens action alleging excessive force under color of federal law. The Supreme Court departed from its prior ruling in Bivens by effectively overruling its own decision in all but name. The Court reasoned that only Congress could create a new cause of action against a person acting under color of federal law. Therefore, the Court reasoned, its prior decision in Bivens improperly created a damages remedy without legislative action; this violated the constitutional separation of powers doctrine between the judicial and legislative branches of government.

The Supreme Court made an extraordinary effort to explain that it was not overruling Bivens in all contexts. Yet Boule was an immigration case. ICE and Border Patrol primarily serve an immigration function. Therefore, in the immigration context, Bivens has been essentially overruled in cases against their agents.

States now struggle to find recourse against federal agents that use excessive force. Illinois was the first to pass a state law to hold federal agents accountable, called the Illinois Bivens Act. California and New York are considering similar legislation. The Illinois law has already been challenged by the Department of Justice.

Congress could also amend section 1983 to include actors under color of "state and federal" law. Section 1983 still reflects the post-Civil War concern over bad state actors, not an affirmative decision to permit unchecked excessive and deadly force by federal agents. But that is exactly where we are in history.

Bivens' lawyers must have been gratified when the Supreme Court created a federal right of action for agents using excessive force. The Department of Justice was likely equally gratified when the Supreme Court reigned in that decision in Boule. As for case selection, these potential civil rights cases, though more abundant currently, are going to be very difficult to maintain.