The Supreme Court’s 2022 term is in full swing, just months after the Court’s conservative majority received great criticism concerning recent decisions relating to abortion, gun rights, and religion. These cases have rightfully garnered the attention of the general population, prominent legal scholars, and various advocacy groups alike, and have raised questions as to the legitimacy of the Court. Concerns about where the Court will go next have become mainstays in current political discourse in ways that have not been seen before, and the current term is likely to keep the Court in this position. Cases regarding affirmative action, religion, the role of state courts in political elections, and environmental protection have already gained political attention, even before the Court stopped accepting cases for argument this term. People are concerned that foundations of modern jurisprudence that have been built up for decades such as the separation of church and state and the right to privacy will continue to be broken down, overlooked, and overruled. Much of the Court’s docket merits attention, but the Court’s cases that degrade constitutionally-sanctioned redress for those who interact with law enforcement have been overshadowed by other decisions by the Court. These decisions merit more attention because when deciding cases involving police accountability, such as Egbert v. Boule, the Court often defers to Congress, leaving people’s constitutional rights in limbo. 

Egbert v. Boule, was decided last term in June. At issue in this case is whether someone can claim damages for a border patrol officer violating their Fourth Amendment right of protection from unreasonable seizures. Robert Boule, the respondent in this case, owns a bed and breakfast near the border between Canada and the United States aptly named the Smuggler’s Inn. In 2014, Boule informed Border Patrol Agent Erik Egbert that a Turkish national was going to be staying at his bed and breakfast. One day, Boule was driving back to the Inn after running errands, and agent Egbert thought Boule’s passenger was the Turkish national in his vehicle. After Boule parked his vehicle, Egbert confronted Boule about his passenger. Egbert became confrontational and violent and pushed Boule to the ground. Finally, after checking immigration documents and coming to the fact that the Turkish national was not indeed with Boule and that nothing had been amiss, agent Egbert left the scene. Afterwards, Boule sued Egbert for violating his fourth amendment protection against unreasonable seizures and sought to claim monetary damages. The Court took up the case to answer, what seems to me, a question with a pretty simple answer: Do people have the constitutional right to claim damages against an officer that violates their rights to protection against unreasonable searches and seizures? In my mind, the obvious answer is yes. After losing in the court of appeals, Egbert filed for the Supreme Court to hear his case and they agreed. 

Justice Thomas, writing for the Court, reasoned that allowing citizens the ability to claim monetary damages against Border Patrol officers who violate their rights would be “regulating the conduct of agents at the border.” Doing this, in the Court’s view, would have adverse security implications that other federal officers would not similarly face or have to confront. Additionally, Thomas writes that the decision to allow for people to sue border patrol officers for damages who violate their rights should be a decision made by Congress. However, in deciding that someone cannot claim damages against a border patrol officer, the Court makes its own policy decision based on their idea of how this would affect national security at the border. The “border” Justice Thomas references in this case is the so-called “border zone,” a zone that contains all land in the United States that is within 100 miles of an international border, or international waters. This zone alone contains the entire states of Florida and Michigan, and contains over 200 million people. Major cities such as New York City, Los Angeles, Chicago, Washington D.C., and Houston are in this zone, cities that collectively contain over 18 million people. While the case does not strip people of constitutional protections, such as the right to remain silent, “freedom” from unreasonable searches without probable cause – although this right often gets ignored in encounters with law enforcement – it does reduce the channels through which individuals can seek justice. I take the opposite position of the Court in this case as it relates to regulating the behavior of Border Patrol officers. Considering these Border Patrol officers deal with matters such as the entrance and exit of persons across national borders, they must be held to more rigorous standards and take particular care in how they conduct themselves.

These officers are also more likely to interact with people who are poorer and will be adversely affected by this case in very real ways. Take, for example, a man who is confronted by an officer and is unjustly physically assaulted. He sustains damage to his arm, and needs to get surgery, but he does not have the money to seek the operation. Denying his right to gain monetary damages in the name of deregulating the actions of Border Patrol agents for national security reasons is simply unjust. He now has an injury he cannot get treated, or one he must dig into his savings to recover from, whereas the border patrol officer may get a slap on the wrist… if that. This case will play an important role in the continued lack of accountability that border patrol officers already enjoy and abuse. 

This is not the only time the Court has reduced police accountability by deferring the ability for people to sue officers who violate constitutional rights to Congress, nor will it be the last. Last year, in the same term as Egbert v. Boule, the Court ruled that people cannot sue an officer who fails to provide Miranda rights to someone being taken into custody. This is another case in which the Court uses the guise of “judicial restraint” and the “separation of powers” to overlook the Constitution. In these cases, the Court is not doing its job of applying constitutional principles, it is shifting the burden to Congress to grant rights to people that the Court overlooks in the Constitution. In deferring the right of people to claim monetary damages or sue an officer that fails to provide one’s Miranda rights to Congress, not only does the Court limit the way in which people can seek constitutionally ordained justice, but it also effectively stops the consideration of such constitutional rights in the aftermath of such rulings. 

This struggle between the Court and Congress appears to not be going away anytime soon and constitutional questions regarding police encounters will remain. It is hard to imagine that the Court will turn around and reverse these decisions; in fact, one member of the Court, Justice Gorsuch, is looking further into the future to completely overrule the constitutional guarantee to claim monetary compensation for damages when your rights are violated by all federal officers established in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the case weakened by Egbert v. Boule. It is clear that the Court will continue this practice of deferring constitutional questions to Congress, effectively leaving people without rights that are clearly afforded to them in the Constitution.