Back in 1971, SCOTUS heard a case called Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. I won’t review that case here, but basically, some feds hassled a dude named Bivens by breaking into his house without a warrant and handcuffing him in front of his family. They went on to interrogate him intensely, and even strip-searched him. So Bivens, finding this less than pleasant, sued the feds for being constitution-violating pricks.

At the time, the law prevented people from being allowed to sue cops operating in the line of duty, but SCOTUS was like, “These prick feds aren’t above the law. If they’re clearly acting outside their duties in a way that violates someone’s rights, they can be sued. But, it’s on Bivens to prove damages.”

When SCOTUS made this ruling, it was limited to this exact situation. It was not presented as being a broad precedent applying to all federal officers committing any violation which may seem unconstitutional. So if there are major differences in the new case being compared to the Bivens precedent, they’d be considered an expansion of Bivens if applied.

Ever since, when someone tries to sue a fed, it’s called a Bivens suit. I guess that’s one way to have a legacy. Congrats, Mr. Bivens.

In this case, federal border agent Erik Egbert went to a quaint little US-Canada border B&B called the Smuggler’s Inn located in Washington, and approached a car with a Turkish passenger in it. Officer Egbert had spoken with the owner of the Smuggler’s Inn, Robert Boule, earlier in the day, and Boule had told him this person had come in from Turkey. Apparently Boule isn’t a fan of people from Turkey or some shit. I don’t know. For whatever reason, Boule decided to drop a dime on my dude.

But when Boule later saw officer Egbert show up to question captain Turkey, he cordially invited Egbert to get right the fuck off his property. Apparently he was unaware Egbert would use this earlier info to hassle his customer, or he had some odd change of heart.

Officer Egbert didn’t just decline his polite offer, he pushed Boule to the ground and was all like, “Yo, I’m a fed, bitch! Back the fuck up off me!”

Once it was confirmed that the Turkian, or Turkeyman, or whatever the hell you call a Turkish person, was confirmed to be here legally, officer Egbert and his other federal crips left with no further incident. The Turkey whatever did end up crossing into Canada illegally, so apparently, Egbert’s hunches weren’t wrong. But it was Canada’s problem, not ‘Murica’s

Supposedly, the Smuggler’s Inn had a reputation for attracting miscreants looking to come into the US illegally, and Egbert was presumably quite sick of this shit.

Smuggler’s Inn owner Boule, being rather displeased with officer Egbert’s behavior, called Egbert’s supervisor to complain. But no amount of Karening works on feds, and sadly Boule was not going to find the droids he was looking for.

Having just been majorly Karened by Boule, with apparently no disciplinary action taken, officer Egbert decided this prick Inn owner needed to be taught a fucking lesson in respect. So he hatched a master plan to make Boule’s life even worse. He suggested that the IRS investigate Boule and the Smuggler’s Inn, further antagonizing this poor fuck for just trying to get a nut. As luck would have it, turns out Boule has subsequently plead guilty to breaking some Canadian immigration laws, and he got time served. So he’s not exactly innocent in all this shit.

Egberts legal team argues that the Bivens precedent is bullshit. Fed’s, working in the line of duty, should be immune from suits. If they do something wrong, let the internal affairs assholes deal with it.

But even if SCOTUS isn’t prepared to overturn that shit, they believe this case is different enough that Bivens doesn’t apply, because unlike those cunts in narcotics, border patrol rozzers are a matter of national security, and as such, their issues potentially pose an immediate national security threat. So Egbert argues he should get more leeway than someone trying to prevent some poor fuck from getting high, because he might have to act hastily to prevent a national security problem, whereas some narc is just waging a stupid war on drugs.

Egbert’s team also seems to think that just because Boule complained about him, and he retaliated by sicking the IRS on him, doesn’t mean he violated their first amendment rights. So long as he had a legitimate reason to think there may be tax fraud afoot, he was duty-bound to report that whiny fuck and his little Inn of horrors.

Boule’s claim is twofold. They claim calling the fucking tax cunts because Boule Karened Egbert is penalizing him for free speech, a blatant first amendment violation. He also claims that harassing his Turkish guest was an illegal search, and thus a fourth amendment violation. I think the excessive force of pushing Boule on the ground like a little bitch, also falls under the fourth amendment.

Counsel Sarah M. Harris opened for officer Egbert by basically arguing that even though Bivens is a landmark case at this point, with years of precedent, this case expands on it, and that’s not OK. She also points out that these days, with qualified immunity, it’s pretty fucking clear, Bivens doesn’t jive with how shit is done now.

Justice Roberts was like, “How is this not a similar fourth amendment violation to Bivens. It was an illegal search by a border agent, was it not? Did he have a fucking warrant? Are you really saying that simply because it was close to the Canadian border, that makes it totally OK?”

Counsel Harris was like, “Well, he was there investigating a potential illegal entry issue, which is his fucking job, yeah?”

But Justice Roberts was unimpressed. He was like, “So somehow the 4th amendment is different near the border than it is in fucking Des Moines or some shit?”

Counsel Harris was like, “Fuck yeah it is. Are you for real right now? They’re near the fucking border. So they’re going to have a lot more people committing crimes there, by virtue of the fact that crossing our border without permission is a fucking crime.”

They eventually congealed around the idea that the agents job, and proximity matter. Like an IRS agent at the border has no more leeway on the fourth amendment, because they’re just about collecting taxes. But a border agent at the border, by the nature of their job, needs to search a lot more people.

Justice Breyer, apparently wanting to show everyone how much he knew about federal agencies, started rattling off every one he could think of, asking counsel Harris if Bivens apply to them. He mentioned Federal prison guards, the FBI, ATF, the US Mint Police, and even the DEA which succeeded the FBN that were at the root of the Bivens case.

Counsel Harris, each time had the brilliant response of “it depends.” Her argument again, seems to hinge around putting the agency and the situation together, and examining whether those two are the same context as Bivens.

Next up, the US government represented by Michael R. Huston, supporting officer Egbert.

Counsel Huston opened up by arguing, “Even if we think Boule is right in his bullshit claim that this was just retaliation for being Karened, and not because Egbert had reason to believe there was a tax crime being committed, if you side with this prick, you’re going to give the courts a shit-ton of work.

Because every fucking prick that thinks an officer was a dick to them, and that officer took more than one action against them, will be opened up for some retaliatory 1A claim. Are you ready for that fucking shitstorm, SCOTUS?”

As for the fourth amendment claim, his argument was again, basically national security. That somehow, border agents should have more power to violate the constitution. Sounds fucking shady to me, but that’s government for you.

Finally we get to counsel Felicia H. Ellsworth, representing Inn owner and chief Karening officer, Mr. Boule. She opened with this.

Mr. Chief Justice, and may it please the Court: Mr. Boule’s Fourth Amendment claim is materially indistinguishable from Bivens itself. A federal law enforcement agent entered private property without a warrant and used excessive force, just like the federal agents in Bivens, as the Court’s questions have indicated. The fact that the federal agent inquired about the visa status of Mr. Boule’s guest in the process does not make this case any different from the other instances of law enforcement overreach in the search-and-seizure context in which this Court has long recognized that a Bivens remedy lies. And this case has none of the foreign policy or extraterritoriality concerns that animated the Court’s decision in Hernandez.

For the record, Hernandez was a case where agents shot across the Mexican border and killed a 15 year old Mexican, and so it was a little concerning that Mexico might not appreciate American bullets flying into its country.

Instead, this is a case like the Court observed in Abbasi, where Bivens has continuing force and even necessity. Mr. Boule’s First Amendment claim addresses conduct that is similar to the conduct that this Court assumed in Hartman versus Moore could be remedied via Bivens, but even if it is a new context, there is no reason to withhold the remedy here. There’s no national security considerations, no conceivable national security considerations with regard to the First Amendment claim, and no alternative administrative remedial scheme that exists. Awarding individual damages for federal officer misconduct has long-standing roots dating back to the founding and remains appropriate, albeit more limited, today. And as the Court has observed on several occasions, Congress in the Westfall Act preserved the availability of individual damages for constitutional violations.

Although the reach of Bivens may be narrow, the need for the remedy persists, and the argument that the Court should not recognize a Bivens remedy in any new case flies in the face of this Court’s decision just five terms ago in Abbasi and also would contravene the historical foundations allowing individual damages to right a federal officer’s constitutional wrong. Mr. Boule’s case claims satisfy the framework set forth in Abbasi and should be allowed to proceed. I’d welcome the Court’s questions.

Justice Barrett, trying to figure out what needs to happen near the border like this, that wouldn’t be a Biven’s claim in her eyes, asked this:

So what would he have to do for Bivens not to apply? I mean, the—you know, Boule has been involved in smuggling activity in the past. His B&B is called Smuggler’s Inn.

His license plate says “SMUGLER.” You know, there’s this Turkish national who’s staying and there’s suspicion that he’s going to, which, in fact, he did, cross the border into Canada illegally, and this is what Agent Egbert is following up on. What would have to be present? Can you give me a set of facts in which Bivens then would not apply?

Counsel Ellsworth was like, “Well, if he was a border agent enforcing someone coming across the fucking border, that’d do it.

A couple justices were curious as to why Boule told Egbert about the Turkish dude earlier. Counsel did not have an answer to this, but it was known at the time of the hearing that Boule was an informant for the border patrol.

In a unanimous decision in part, and a split decision in another part, SCOTUS decided with Egbert. They were unanimous on the first amendment claim. Just because Egbert called the IRS on Boule after Boule complained about him, isn’t cause for Boule to sue him. Otherwise, everyone will sue if they say something cross to a fed, and that fed then does something else to prosecute them.

Where they disagreed was on the fourth amendment claim. The Republican appointees made up the majority, agreeing that national security concerns at the border, for border agents, protect these officers more, compared to other federal agencies, from Bivens suits.

The Democrat appointees are like, “Rights are fucking rights, you assholes. Just because they’re at the border doesn’t mean they get to wiper their ass with the constitution. This is bullshit!”

Hear oral arguments here at Oyez or read about the case here at SCOTUSBlog.