Border Patrol agents commonly get away with abuses, both against U.S. citizens and migrants. While the federal government has paid out tens of millions of dollars to settle claims of wrongful detention, injury, and even death, individual agents have faced few consequences for their actions. The Supreme Court’s right-wing justices are now ensuring that trend continues, with a decision this week that further shields agents accused of abuse from accountability.
“The decision, by a 6-to-3 vote along ideological lines, stopped just short of overruling a 1971 precedent, Bivens v. Six Unknown Named Agents, that allowed federal courts, rather than Congress, to authorize at least some kinds of lawsuits seeking money from federal officials accused of violating constitutional rights,” The New York Times reports. “But the basic message of Wednesday’s decision, Egbert v. Boule, No. 21-147, was that only Congress can authorize such suits.”
RELATED STORY: 200 million Americans live in the 100-mile zone where Border Patrol can ask for papers
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This week’s case involved a Washington state innkeeper who both colluded with border agents in reporting people who had unlawfully crossed into the U.S., and providing migrants with lodging and transportation, The Washington Post reported. Robert Boule ended up launching a lawsuit in 2017, accusing agent Erik Egbert of entering his property without a warrant, assaulting him, and prompting a tax audit into his business. While a federal judge dismissed the case, the U.S. Court of Appeals for the Ninth Circuit allowed it to continue.
But on Wednesday, the court’s right-wing justices “reinforced protections for government officials who are generally immune from civil lawsuits when it is determined they have acted in good faith while carrying out their duties,” The Washington Post continued, claiming it was Congress’ job. Good luck with that.
“Because Congress will never do this, what this means is that, basically, if the federal government violates your rights in anything but a narrow set of circumstances, if the government doesn’t want to make amends on its own, well, tough shit, bucko,” responded American Immigration Council senior policy counsel Aaron Reichlin-Melnick. Clarence Thomas, whose spouse Ginny was an active participant in the effort to overthrown the 2020 presidential election, authored the decision. Thomas was also the lone justice to side with the insurrectionist former president’s effort to block the release of documents requested by the January 6 commission probing the coup attempt.
Sonia Sotomayor authored the dissent. She “wrote that the court had ‘absolutely immunized from liability’ thousands of Border Patrol agents ‘no matter how egregious the misconduct or resultant injury,’” The Washington Post said.
Why should this case, as well as other cases involving abusive border agents, be a national security concern? Why should you care? Because roughly 200 million Americans live within the 100-mile zone where border agents claim they have the right to harass you. “Legislation from 1946 gives agents the authority to search any vehicle near an ‘external boundary’ of the United States, and subsequent regulations defined that area as within 100 air miles of a land or sea boundary,” Mother Jones reported in 2018.
”Connecticut, Delaware, Florida, Hawaii, Maine, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island and Vermont lie entirely or almost entirely within this area,” the American Civil Liberties Union said. Some of the largest cities in the nation are within this zone, including Chicago, Los Angeles, New York City, and Philadelphia.
If you speak, that may be cause enough for border agents to harass you. In 2018, two U.S. citizen Latinas were harassed by a border agent while shopping at a Montana convenience store after he overheard them speaking Spanish. “When Ana and Mimi asked why they were being held, he answered unequivocally: Because they were speaking Spanish,” the ACLU said at the time. While Customs and Border Protection (CBP) regularly receives its funding without question, legislation enacting critical accountability reforms within Border Patrol has repeatedly stalled.
“In a 6-to-3 vote, the Supreme Court ruled that border agents may unconstitutionally enter a person's home without a warrant and assault him and ... federal courts are powerless to do anything about it,” tweeted attorney Cristian Farias.
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