Justice Clarence Thomas and the U.S. Supreme Court majority have bought the border hype.
Residents of Southern Arizona and the rest of Americaโs borderlands could pay the price.
Thomas wrote the opinion of a 6-3 majority released last week concluding, essentially, that U.S. Border Patrol agents are immune from federal lawsuits even when they violate Americansโ constitutional rights on their own private property. This further weakens residentsโ constitutional rights in border zones where theyโre already degraded.
The reasoning of Thomas and that majority will be familiar to people who have followed the Border Patrolโs attempt to transform itself since 9/11/2001. Essentially, no matter what they are doing, Border Patrol agents are performing a โnational securityโ function, the court ruled. Therefore they must be protected from lawsuits even when they violate Americansโ rights.
Thatโs true even when an agent like Erik Egbert is throwing an American citizen like Robert Boule to the ground on his American property, the incident that prompted this suit. Although Egbert followed up that abuse by siccing the IRS on the American, the court ruled, agents are too important to our security to be threatened with lawsuits for their misbehavior.
โPermitting suit against a Border Patrol agent presents national security concerns that foreclose Bivens relief,โ the majority wrote, citing the 1971 case, Bivens, that establishes limited conditions to sue federal agents who violate peopleโs rights.
Wednesdayโs ruling goes on: โWe ask here whether a court is competent to authorize a damages action not just against Agent Egbert but against Border Patrol agents generally. The answer, plainly, is no.โ
The ruling expands on logic from the courtโs 2020 ruling in Hernandez v. Mesa, a case in which an agent shot and killed a Mexican teen standing on the Mexican side of the border. The court ruled then the teenโs family in Mexico couldnโt sue the agent who shot him; this ruling says even Americans on American soil canโt sue agents for violating their constitutional rights.
That immunity from lawsuits will undoubtedly add to the impunity available to many agents who misbehave. The agencyโs internal discipline is opaque to outsiders, so itโs usually unclear if agents are ever internally reprimanded for abusing members of the public. In this case, Egbert was not internally disciplined.
And prosecutors are reticent to bring criminal cases against agents for shootings or abuse because they so rarely win convictions. (They do win convictions against agents accused of corruption and sometimes sexual assault.)
In other words, people who live in the communities where Border Patrol is omnipresent have little remaining ability to ensure that agents who abuse their power face justice.
Immune from consequences
Justice Sonia Sotomayor recognized this in her dissenting opinion.
โThe consequences of the Courtโs drive-by, categorical assertion will be severe,โ she wrote. โAbsent intervention by Congress, CBP agents are now absolutely immunized from liability in any Bivens action for damages, no matter how egregious the misconduct or resultant injury.โ
The justices in Washington, D.C., undoubtedly have little understanding of the everyday experience of residents or agents in Southern Arizona, where the Border Patrol is the largest law-enforcement agency.
Despite the hype about border crises, which has been going on with little let-up since I started covering events along the international line in 1997, life in the borderlands is largely mundane in most places on most days. An agentโs given shift may be demanding or dangerous, but it may also be so boring as to literally put the agent to sleep. Anyone who has walked up to enough Border Patrol vehicles parked in the hinterlands can attest to that.
Now, I should point out that the Border Patrol is welcomed by many people in the places where it operates. Thatโs in part because agents are around to help out with emergencies unrelated to their federal duties in areas like rural Pima County where sheriffโs deputies may be an hour away.
But that doesnโt mean they should be immune from consequences for violating residentsโ rights.
Constitution only lightly applies
In the case that gave rise to last weekโs ruling, Boule, the owner of a bed-and-breakfast in Blaine, Washington, had tipped off agents that a Turkish man was flying into the United States at New York City, flying across the country to Seattle, then coming up to his inn.
Boule himself is sketchy: He had apparently played both sides of the fence, charging people to be driven to his property on the Canadian border, but also tipping off agents to who was coming, so they could be arrested, and making money as a federal informant. Heโs also been convicted of human smuggling in Canada.
When the Turkish man arrived, Egbert drove his Border Patrol vehicle onto the bed-and-breakfastโs property. Boule asked the agent to leave. The agent declined and as the confrontation escalated, Egbert picked Boule up and threw him against the vehicle, then onto the ground.
The agent then checked the Turkish manโs documents, found he was legally in the country, and departed. The Turk later walked into Canada from the property.
Boule filed a complaint against Egbert with the Border Patrol, but the complaint was determined to be unfounded. Then Egbert tipped off state and federal tax authorities, who audited Boule.
Truth be told, the agent was not breaking any law when he went onto Bouleโs property along the Canadian border. Federal law allows Border Patrol agents to enter private land โ but not private residences โ without a warrant if they are within 25 miles of an international border. Long-established federal rules allow agents to stop vehicles within 100 miles of a border if they have reasonable suspicion an immigration violation has occurred.
They also may operate checkpoints in that 100-mile zone, but can only search vehicles if they have probable cause a crime has been committed.
These factors are the foundation of what makes the borderlands what many people call a โConstitution-free zone,โ or at minimum a place where the Constitution only lightly applies.
Accountability needed
Congress has the ability to correct this injustice. The problem is that our representatives are also deeply in the thrall of the border hype machine. The Tucson-based union for Border Patrol agents, the National Border Patrol Council, was so powerful during the Trump administration that the union president had direct access to the president himself.
That union regularly works to protect agents from accountability and to oppose politicians it disagrees with. In this case, the union submitted a friend-of-the-court brief arguing that Border Patrol agents should not be subject to lawsuits, as previously ruled in this case by the 9th U.S. Circuit Court of Appeals, because it will potentially harm the country.
โBorder Patrol agents need to retain confidence in their ability to act decisively while operating alone, often in remote parts of the country and while, at times, being grossly outnumbered,โ Tucson attorneys Jim Calle and Amy Krauss wrote.
โThe decision of the court of appeals will undermine the Agencyโs mission by causing agents to hesitate and second guess their daily decisions about whether and how to investigate suspicious activities near the border, paralyzing their mandate to keep the border secure.โ
I donโt know about you, but I think if agents like Egbert second-guess whether they should throw residents of the borderlands to the ground, thatโs a good thing.
Thanks to Thomas and the court majority, though, agents who mistreat borderland residents can feel confident of their immunity.
