This week, in Egbert v. Boule, the Supreme Court again expanded legal immunity for federal agents who violate constitutional rights.
It held that federal agents can’t be sued for violating the First Amendment by retaliating against speech. It also held that Border Patrol agents can't be sued for violating the Fourth Amendment by engaging in excessive force near the border, which effectively means that Border Patrol agents can’t be sued for their border security activities at all, no matter what constitutional rights they violate. This decision could have significant consequences for the victims of constitutional abuses, including clients of the ACLU of Oregon and Public Accountability. It means that many of our clients—people whom federal officers unlawfully dispersed, shot, beat, and gassed at the 2020 racial justice protests in Portland—will have yet another hurdle to contend with in federal court.
The Court’s decision all but eliminated what civil rights lawyers call “the Bivens doctrine.” In a 1971 case titled Bivens v. Six Unknown Federal Narcotics Agents, the U.S. Supreme Court recognized that a man whose Fourth Amendment rights were violated after law enforcement forced entry into his home and unlawfully arrested him in front of his wife and children had a right to sue for damages under the Constitution itself. The Court held that even though Congress had not legislatively created such a “cause of action,” the existence of a constitutional right implied the existence of a legal remedy for its violation.
In a series of decisions in the 1980s, however, the Court began watering down this remedy —along with similar remedies against state and local officers—with the creation of qualified immunity.
Qualified immunity shields government agents from liability for violating constitutional rights, unless those rights are already “clearly established”—meaning that they have been recognized by an earlier federal court decision in the same jurisdiction. In practice, this means that a victim of governmental misconduct must identify a previous case in which a federal court held that the same type of misconduct, under the same circumstances, was unlawful. At the same time, the Court began contracting Bivens itself, holding that as to certain defendants and certain rights, the Constitution provided no remedy after all.
Consistent with this rollback, the Egbert opinion also works to ensure the United States Constitution’s ideals exist on papyrus alone.
The Egbert opinion is the culmination of this decades-long project to shield government officials from accountability. As Justice Gorsuch explained in his concurring opinion, it all but eliminates the Bivens remedy entirely. It arrives in the shadow of the looming Dobbs v. Jackson Women’s Health Organization decision, a leaked draft of which revealed that the Court’s conservative majority intends to eliminate constitutional protections for women and LGBTQ people. Consistent with this rollback, the Egbert opinion also works to ensure the United States Constitution’s ideals exist on papyrus alone.
The Egbert decision and qualified immunity gut meaningful constitutional accountability, and Oregon’s current legal scheme offers little recourse. But even though Oregon cannot provide a way to hold federal agents accountable, it should provide robust mechanisms to do so for state and local officials. Neither Oregon’s courts nor the legislature have provided Oregonians with a direct cause of action when state or local government officials violate their constitutional rights. Recently, states like New Mexico and Colorado have taken critical steps to change this power imbalance between the government and the people it serves. Oregon should, too.
Oregon must take a stance against the federal hypocrisy that promises rights without offering any meaningful mechanism to vindicate them. Oregonians should be permitted to seek judicial remedies, including monetary ones, when government officials, like police officers, injure them in violation of the Oregon Constitution.