Justice Stephen Breyer on Wednesday heard his last case involving immunity for federal officials when they violate the Constitution.
Over the years, Breyer has been a staunch opponent of this blanket immunity. Without him on the bench, victims of constitutional violations by those who happen to work for the federal government will lose an important ally – especially because Breyer is known for being an effective behind-the-scenes operator.
This is Breyer’s last chance to persuade his colleagues to fix the enormous constitutional loophole created by federal immunity.
thecase, Egbert v. boule, involves US Customs and Border Protection officer Erik Egbert, who grabbed and shoved down an innkeeper, Robert Boule, in Boule’s driveway. Egbert was seeking to speak with Boule’s guest, who was in the United States legally. When Boule reported Egbert’s conduct, the officer retaliated by prompting four government agencies, including the IRS, to investigate his inn of him. All did, and all came up empty.
These events happened eight years ago, but Boule is still fighting for his right to sue the officer for violating his First and Fourth Amendment rights. There is no question that Egbert had worked for local police, Boule would not have had the same problem.
That’s because America has a two-track system of constitutional accountability.
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On the first track are state and local officials who can be sued when they violate the Constitution, though they are often shielded by qualified immunity. On the second track are federal officials.
Unlike those who work for state and local governments, federal officials are not included in the Civil Rights statute that Congress passed after the Civil War – commonly referred to as Section 1983 – and this omission became an excuse for federal courts to deny the right to sue them, providing them with what amounts to absolute federal immunity.
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Justice Breyer saw through this unstable and unsustainable double standard. When the Supreme Court disregarded its own precedent in 2017 and let federal officials off the hook for cruelly and systematically mistreating a group of Muslim detainees in the wake of 9/11despite knowing that they were not connected to terrorism, Breyer dissentprotesting this preferential treatment.
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In Breyer’s view, providing federal officials with blanket immunity to commit violations of constitutional rights would stand the constitutional design on its head. After all, long before the Bill of Rights applied against state and local officials, it applied against the federal government. So federal officials guilty of the same constitutional transgressions as state officials would be held to the same standard.
In addition, Breyer argued, granting federal officials absolute protection from accountability would hollow out this country’s founding promise that where there is a violation of a right, there must be a remedy to account for it.
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In retrospect, Breyer’s warning was prophetic. Today, largely because of that decision involving 9/11 details, a Vietnam War veteran beaten by Veterans Affairs hospital security guards and a protester teargassed by US Park Police in Washington, DC, cannot sue their tormentors even when their claims are strong enough to overcome qualified immunity.
Similarly, a Somali refugee framed by a federal task force officer and a man nearly murdered by a Department of Homeland Security agent were denied their right to sue and are now waiting for the Supreme Court to intervene – a decision that will likely be dictated by the court’s upcoming decision in Egbert.
In Egbert, too, this very same pattern took place when the district court threw out the case because of the officer’s federal status. The 9th Circuit, in a surprising decision, reinstated the case, declining to provide the blanket immunity.
But the Supreme Court intervened, indicating that it may be interested in reversing the 9th Circuit.
A final glimmer of hope before Breyer’s retirement
If the Supreme Court does reverse the 9th Circuit’s decision in Egbert, then its broad application of federal immunity would further call into question the Constitution’s application near the border, shield immigration officers for all manner of physical abuses, and could finally slam shut any chance of suing any federal official who violates the First Amendment.
There is still time, however, for Breyer to prevail.
And if Wednesday’s oral argument is any indication, Breyer’s consensus-building approach might already be paying off, at least with regard to the Fourth Amendment claim. Chief Justice John Roberts and Justice Clarence Thomas, traditionally skeptical of constitutional claims against federal officers, both asked probing questions of the lawyer representing Egbert.
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Roberts even pointed out that what Egbert is advocating is essentially a “Fourth Amendment free zone.” Breyer was right there with them, concerned about the officers in the 83 federal law enforcement agencies with the power to use force and no way to hold them constitutionally accountable.
But federal officials should be held to the same standard of accountability as their state and local counterparts. This is consistent with the original design, as Breyer aptly pointed out, and in line with an important precedent established five decades ago.
These arguments should appeal to a majority of the court, liberal or conservative. And there is no one better than Breyer to carry on with his considerable skills of persuasion and try one last time to get the court to agree that absolute federal immunity should be off the table.
Anya Bidwell and Patrick Jaicomo are lawyers with the Institute for Justice. They represent two plaintiffs whose rights were violated by federal police before the US Supreme Court.
This column is part of a series by the USA TODAY Opinion team examining the issue of qualified immunity. The project is made possible in part by a grant from stand together. Stand Together does not provide editorial input.
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George is Digismak’s reported cum editor with 13 years of experience in Journalism