Boule v. Egbert, No. 18-35789 (9th Cir. 2020)
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Bivens remedies are available in the circumstances of this case, where a United States citizen alleges that a border patrol agent violated the Fourth Amendment by using excessive force while carrying out official duties within the United States, and violated the First Amendment by engaging in retaliation entirely unconnected to his official duties.
In this case, plaintiff owns, operates, and lives in a bed and breakfast near the United States-Canada border in Blaine, Washington. Plaintiff alleged that a border patrol agent entered plaintiff's property to question guests and used excessive force on plaintiff, ultimately retaliating against plaintiff by, among other things, contacting the IRS to seek an investigation into plaintiff's tax status.
In regard to the Fourth Amendment claim, the Ninth Circuit concluded that no special factors counsel hesitation in extending a Bivens remedy to this new context. The panel stated that plaintiff, a United States citizen, brings a conventional Fourth Amendment claim based on actions by a rank-and-file border patrol agent on his property in the United States. The panel also concluded that plaintiff's First Amendment claim arises in a new context, but no special factors that counsel hesitation in extending a Bivens remedy to this new context. The panel explained that retaliation is a well-established First Amendment claim, available against governmental officers in general. Finally, the panel concluded that there are no alternative remedies available to plaintiff.
Court Description: Civil Rights. The panel reversed the district court’s summary judgment for defendants in an action brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), by a United States citizen who alleged that a border patrol agent, acting on plaintiff’s property within the United States, violated plaintiff’s rights under the First and Fourth Amendments. Plaintiff owns, operates and lives in a bed and breakfast in the state of Washington, on land which touches the United States-Canada border. Plaintiff alleged that a border patrol agent entered the front driveway of plaintiff’s property to question arriving guests, used excessive force against plaintiff, and then, in response to plaintiff’s complaints, retaliated against plaintiff by, among other things, contacting the Internal Revenue Service, asking the agency to look into plaintiff’s tax status. The district court granted summary judgment to defendants on plaintiff’s First and Fourth Amendment claims, holding that they were impermissible extensions of Bivens. The panel held that Bivens remedies were available in the circumstances of this case, where a United States citizen alleged that a border patrol agent violated the Fourth Amendment by using excessive force while carrying out official duties within the United States, and violated the First BOULE V. EGBERT 3 Amendment by engaging in retaliation entirely unconnected to his official duties. Addressing the Fourth Amendment claim, the panel agreed that it was a modest extension in a new context. However, no special factors counseled hesitation in allowing the Bivens action to proceed. The panel held that plaintiff, a United States citizen, brought a conventional Fourth Amendment claim based on actions by a rank-and-file border patrol agent on plaintiff’s property in the United States. This context was a far cry from the contexts in Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017), and Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020), in which the Supreme Court found special factors. Addressing the First Amendment claim, the panel noted that the Supreme Court had not recognized a Bivens claim in the First Amendment context and therefore the panel concluded that plaintiff’s First Amendment claim arose in a new context. However, no special factors counseled hesitation in extending a Bivens remedy under the circumstances. The panel noted that retaliation was a well- established First Amendment claim, available against governmental officers in general, and defendant’s alleged retaliation had no relation to, or justification based on, his duties as a border patrol agent. The panel further noted that it appeared that there were no alternative remedies available to plaintiff for either claim.
The court issued a subsequent related opinion or order on May 20, 2021.
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