Amicus Curiae Brief — Erik Egbert, Petitioner v. Robert Boule

Supreme Court briefJan 26, 2022

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No. 21-147

IN THE

Supreme Court of the United States

___________

ERIK EGBERT,

ROBERT BOULE,

___________

Petitioner,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

___________

BRIEF OF CONSTITUTIONAL

ACCOUNTABILITY CENTER AS AMICUS

CURIAE IN SUPPORT OF RESPONDENT

___________

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

DAVID H. GANS

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

January 26, 2022

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

iii

INTEREST OF AMICUS CURIAE ......................

INTRODUCTION AND SUMMARY OF

ARGUMENT ......................................................

ARGUMENT .........................................................

I. The Text and History of Article III Give the

Federal Courts Broad Judicial Power to

Protect Constitutional Rights and Prevent

Abuse of Power by the Government .............

II. The Framers Wrote Article III to Ensure

that Where There Is a Legal Right, There

Is a Legal Remedy for Infringement of that

Right .............................................................

III. The Framers of the Fourth Amendment

Viewed Civil Damage Suits Against

Government Officers as a Critical Bulwark

Against Government Overreach ..................

IV. Courts in the Founding Generation

Vindicated Fundamental Rights by

Granting Damages Remedies in Common

Law Tort Suits..............................................

V. A Bivens Action Is Appropriate Where

Federal Law Enforcement Officers Violate

Constiutional Rights ....................................

CONCLUSION ....................................................

(i)

TABLE OF AUTHORITIES

Cases

Page(s)

Bates v. Clark,

95 U.S. 204 (1877) .....................................

Bauduc’s Syndic v. Nicholson,

2 La. 200 (1831) .........................................

Belknap v. Schild,

161 U.S. 10 (1896) .....................................

Bivens v. Six Unknown Named Agents of

Fed. Bureau of Narcotics,

403 U.S. 388 (1971) ................................ passim

Boyd v. United States,

116 U.S. 616 (1886) ................................... 14, 16

Bush v. Lucas,

462 U.S. 367 (1983) ...................................

Butz v. Economou,

438 U.S. 478 (1978) ...................................

Carpenter v. United States,

138 S. Ct. 2206 (2018) ...............................

Cohens v. Virginia,

19 U.S. (6 Wheat.) 264 (1821) ...................

Corr. Servs. Corp. v. Malesko,

534 U.S. 61 (2001) .....................................

Entick v. Carrington,

19 How. St. Tr. 1029 (C.P. 1765) .............. 14, 15

Franklin v. Gwinnett Cty. Pub. Sch.,

503 U.S. 60 (1992) ..................................... 12, 13

iii

TABLE OF AUTHORITIES – cont’d

Page(s)

Hartmann v. Moore,

547 U.S. 250 (2006) ...................................

Hernandez v. Mesa,

140 S. Ct. 735 (2020) ................................. 25, 26

Hirsch v. Rand,

39 Cal. 315 (1870) .....................................

Huckle v. Money,

95 Eng. Rep. 768 (K.B. 1763) .................... 14, 15

Hui v. Castenada,

559 U.S. 799 (2010) ...................................

Imlay v. Sands,

1 Cai. R. 566 (N.Y. Sup. Ct. 1804) ............

Jesner v. Arab Bank, PLC,

138 S. Ct. 1386 (2018) ...............................

Kendall v. United States ex rel. Stokes,

37 U.S. (12 Pet.) 524 (1838) ......................

Leach v. Money,

19 How. St. Tr. 1001 (K.B. 1765) ..............

Little v. Barreme,

6 U.S. (2 Cranch) 170 (1804) ....................

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) .................... 4, 12

Martin v. Hunter’s Lessee,

14 U.S. (1 Wheat.) 304 (1816) ...................

Maryland v. King,

569 U.S. 435 (2013) ...................................

TABLE OF AUTHORITIES – cont’d

Page(s)

Merriam v. Mitchell,

13 Me. 439 (1836) ......................................

Minneci v. Pollard,

565 U.S. 118 (2012) ...................................

Mitchell v. Harmony,

54 U.S. (13 How.) 115 (1852) ....................

Phila. Co. v. Stimson,

223 U.S. 605 (1912) ...................................

Riley v. California,

573 U.S. 373 (2014) ...................................

Spokeo, Inc. v. Robins,

136 S. Ct. 1540 (2016) ...............................

Stanford v. Texas,

379 U.S. 476 (1965) ...................................

Tanzin v. Tanvir,

141 S. Ct. 486 (2020) ......................... 3, 5, 19, 20

Transunion LLC v. Ramirez,

141 S. Ct. 2190 (2021) ...............................

United States v. Haymond,

139 S. Ct. 2369 (2019) ...............................

United States v. Lee,

106 U.S. 196 (1882) ................................... 2, 22

Wilkes v. Wood,

19 How. St. Tr. 1153 (C.P. 1763) .............. 14, 15

Wilson v. McKenzie,

7 Hill 95 (N.Y. Sup. Ct. 1845) ...................

TABLE OF AUTHORITIES – cont’d

Page(s)

Wise v. Withers,

7 U.S. (3 Cranch) 331 (1806) .................... 20, 21

Ziglar v. Abbasi,

137 S. Ct. 1843 (2017) ........................... 5, 25, 26

Statutes and Constitutional Provisions

Del. Const. of 1792, art. I, § 9 ......................

Ky. Const. of 1792, art. XII, § 13 .................

Mass. Const. of 1780, art. XI .......................

Md. Const. of 1776, art. XVII .......................

N.H. Const. of 1784, art. XIV .......................

Pa. Const. of 1790, art. IX, § 11 ...................

Tenn. Const. of 1796, art. XI, § 17 ...............

28 U.S.C. § 2679(b) .......................................

U.S. Const. art. III, § 2, cl. 1. .......................

Vt. Const. of 1786, ch. 1, para. 4 ..................

Books, Articles, and Other Authorities

Akhil Reed Amar, Fourth Amendment

First Principles, 107 Harv. L. Rev. 757

(1994) ......................................................... 4, 15

Akhil Reed Amar, Of Sovereignty and

Federalism, 96 Yale L.J. 1425 (1987) .......

TABLE OF AUTHORITIES – cont’d

Page(s)

1 Annals of Cong. (1789) (Joseph Gales ed.,

1834) .......................................................... 9, 18

3 William Blackstone, Commentaries on

the Laws of England (1768) .................. 4, 11, 12

3 The Complete Anti-Federalist (Herbert J.

Storing ed., 1981) ......................................

4 The Complete Anti-Federalist (Herbert J.

Storing ed., 1981) ......................................

5 The Complete Anti-Federalist (Herbert J.

Storing ed., 1981) ...................................... 5, 17

William J. Cuddihy, The Fourth

Amendment: Origins and Original

Meaning 602–1791 (2009) ......................... 16, 17

2 The Debates in the Several State

Conventions on the Adoption of the

Federal Constitution (Jonathan Elliot ed.,

1836) ..........................................................

3 The Debates in the Several State

Conventions on the Adoption of the

Federal Constitution (Jonathan Elliot ed.,

1836) ....................................................... passim

4 The Debates in the Several State

Conventions on the Adoption of the

Federal Constitution (Jonathan Elliot ed.,

1836) .......................................................

Essays by A Farmer (I), Baltimore Md.

Gazette, Feb. 15, 1788 .............................. 4, 17

vii

TABLE OF AUTHORITIES – cont’d

Page(s)

Essays by Hampden, Mass. Centinel, Feb.

2, 1788 .......................................................

Essay of A Democratic Federalist, Penn.

Herald, Oct. 17, 1787 ................................

Richard H. Fallon, Jr., Bidding Farewell to

Constitutional Torts, 107 Cal. L. Rev. 933

(2019) ......................................................... 5, 10

The Federalist No. 22 (Alexander

Hamilton) (Clinton Rossiter ed., 1961) ....

The Federalist No. 43 (James Madison)

(Clinton Rossiter ed., 1961) ......................

The Federalist No. 78 (Alexander

Hamilton) (Clinton Rossiter ed., 1961) ....

3, 7

The Federalist No. 80 (Alexander

Hamilton) (Clinton Rossiter ed., 1961) ....

Henry Friendly, In Praise of Erie—And the

New Federal Common Law, 39 N.Y.U. L.

Rev. 383 (1964) ..........................................

Andrew Kent, Lessons for Bivens and

Qualified Immunity Debates From

Nineteenth Century Litigation Against

Federal Officers, 96 Notre Dame L. Rev.

1755 (2021) ................................................

Letter from Clarendon to W. Pym (Jan. 27,

1766) ...........................................................

viii

TABLE OF AUTHORITIES – cont’d

Page(s)

Luther Martin, The Genuine Information,

Delivered to the Legislature of the

State of Maryland, Relative to the

Proceedings of the General Convention

(Nov. 29, 1787) .......................................... 7, 17

Hon. M. Blane Michael, Reading the

Fourth Amendment: Guidance from the

Mischief That Gave It Birth, 85 N.Y.U. L.

Rev. 905 (2010) .......................................... 15, 16

1 Papers of John Adams (R. Taylor ed.,

1977) ..........................................................

James E. Pfander & Jonathan L. Hunt,

Public Wrongs and Private Bills:

Indemnification and Government

Accountability in the Early Republic, 85

N.Y.U. L. Rev. 1862 (2010) .......................

Stephen E. Sachs, Constitutional

Backdrops, 80 Geo. Wash. L. Rev. 1813

(2012) .........................................................

2 Joseph Story, Commentaries on the

Constitution of the United States (3d ed.

1858) ..........................................................

3 Joseph Story, Commentaries on the

Constitution of the United States (1833) ..

George C. Thomas III, Stumbling Toward

History: The Framers’ Search and

Seizure World, 43 Tex. Tech. L. Rev. 199

(2010) .........................................................

TABLE OF AUTHORITIES – cont’d

Page(s)

Stephen I. Vladeck, The Disingenuous

Demise and Death of Bivens, 2019-2020

Cato Sup. Ct. Rev. 263 (2020)...................

Ann Woolhandler, Patterns of Official

Immunity and Accountability,

37 Case. W. Res. L. Rev. 396 (1987) .........

INTEREST OF AMICUS CURIAE1

Constitutional Accountability Center (CAC) is a

think tank, public interest law firm, and action center

dedicated to fulfilling the progressive promise of the

Constitution’s text and history. CAC works in our

courts, through our government, and with legal scholars to improve understanding of the Constitution and

preserve the rights and freedoms it guarantees. CAC

has a strong interest in ensuring meaningful access to

the courts, in accordance with constitutional text and

history, and accordingly has an interest in this case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Robert Boule owns, operates, and resides in a small

bed-and-breakfast in Blaine, Washington. In March

2014, Erik Egbert, a U.S. Border Patrol agent, entered

Boule’s property without a warrant to investigate a

guest staying at Boule’s establishment. After entering

the property, Egbert assaulted Boule, causing him to

sustain back injuries requiring medical attention. After Boule complained about Egbert’s abuse of power,

Egbert retaliated against Boule by causing the Internal Revenue Service and other federal and state agencies to open investigations into Boule. Although none

of these investigations uncovered any wrongdoing by

Boule, they did require Boule to expend money to defend himself and his business.

1 The parties have consented to the filing of this brief.

Under

Rule 37.6 of the Rules of this Court, amicus states that no counsel

for a party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than

amicus or its counsel made a monetary contribution to its preparation or submission.

The question in this case is whether Boule can sue

for money damages to redress this abuse of authority

by a federal law enforcement officer who was acting

under color of law. The Constitution’s text and history

make plain that he can because individuals can sue in

a court of law to hold federal officers accountable for

violating constitutionally guaranteed rights. Indeed,

suits such as this one, cognizable under Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), are an indispensable mechanism for ensuring that the federal government abides

by constitutional limits on its authority.

The Constitution’s text explicitly safeguards fundamental rights, but says little about the legal remedies

available for the violation of those rights. That reflects

the fact that the Constitution was “layered on top” of a

“common law tradition” designed to hold government

officers accountable for committing legal wrongs. Stephen E. Sachs, Constitutional Backdrops, 80 Geo.

Wash. L. Rev. 1813, 1822 (2012). The legal backdrop

against which the Constitution was drafted, debated,

and ratified ensures that “[n]o man in this country is

so high that he is above the law. No officer of the law

may set that law at defiance with impunity. All the

officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.”

United States v. Lee, 106 U.S. 196, 220 (1882). Because the Constitution was drafted against this background common law principle of officer accountability,

officers “are amenable for their injurious acts to the

judicial tribunals of the country, at the suit of the oppressed.” 2 Joseph Story, Commentaries on the Constitution § 1676, at 508 (3d ed. 1858).

Egbert urges that, as a matter of separation of powers, he may not be sued for violating Boule’s constitutional rights unless Congress “engage[s] in the

quintessentially legislative task of creating damages

actions.” Pet. Br. 2. But that ignores the constitutional backdrop that has made suits for damages

against federal officers a fundamental part of “our constitutional system since the dawn of the Republic.”

Tanzin v. Tanvir, 141 S. Ct. 486, 493 (2020). When

courts entertain damages suits against federal officers

who have allegedly violated the Constitution, they are

not arrogating Congress’s power; they are simply ensuring redress for abuse of authority by federal officers

in the manner contemplated by the Constitution.

Three precepts firmly embedded in the Constitution’s text and history strongly support permitting an

action under Bivens here. First, when the Framers

wrote our Founding charter more than two centuries

ago, they gave the federal judiciary a critical role to

play in our system of separation of powers. They

drafted Article III to establish a federal judiciary with

broad power to enforce the Constitution’s limitations

on the power of government in cases and controversies

that come before the courts. Article III courts thus perform an essential checking function on the political

branches of government, ensuring fidelity to the Constitution’s structure and its guarantee of individual

rights. The Framers understood that constitutional

“[l]imitations . . . can be preserved in practice no other

way than through the medium of courts of justice,

whose duty it must be to declare all acts contrary to

the manifest tenor of the Constitution void. Without

this, all the reservations of particular rights or privileges would amount to nothing.” The Federalist No.

78, at 466 (Alexander Hamilton) (Clinton Rossiter ed.,

1961). In the Framers’ constitutional design, when

other branches transgress the Constitution’s limits,

“the judicial department is a constitutional check.” 2

The Debates in the Several State Conventions on the

Adoption of the Federal Constitution 196 (Jonathan Elliot ed., 1836) [hereinafter Elliot’s Debates]. Bivens enforces this structural constitutional principle.

Second, and related to the first, the Framers wrote

Article III to ensure that where there is a legal right,

there is also a legal remedy for violation of that right.

The Framers wrote the Constitution against the backdrop of English common law traditions, and they understood that legal rights were meaningless without

the ability to go to court to obtain a remedy when those

rights were violated. As this Court recognized in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), “it is a

general and indisputable rule, that where there is a

legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded.” Id. at 163

(quoting 3 William Blackstone, Commentaries on the

Laws of England *23 (1768)). Marbury affirmed that

“[t]he very essence of civil liberty certainly consists in

the right of every individual to claim the protection of

the laws, whenever he receives an injury.” Id.

Third, these fundamental rule-of-law principles

have deep roots not only in the text and history of Article III, but also in the history of the Fourth Amendment. “All the major English cases that inspired the

Fourth Amendment were civil jury actions” in which

juries awarded damages to prevent abuse of power by

British law enforcement officers. Akhil Reed Amar,

Fourth Amendment First Principles, 107 Harv. L. Rev.

757, 775 (1994). The Founding generation that added

the Bill of Rights to the Constitution viewed suits for

damages as a critical bulwark against abuse of power

by federal officers. As one Anti-Federalist essayist

made the point, “no remedy has been yet found equal

to the task of deter[r]ing and curbing the insolence of

office, but a jury—It has become an invariable maxim

of English juries, to give ruinous damages whenever

an officer has deviated from the rigid letter of the law,

or been guilty of any unnecessary act of insolence or

oppression . . . .” Essays by A Farmer (I), Baltimore

Md. Gazette, Feb. 15, 1788, reprinted in 5 The Complete Anti-Federalist 14 (Herbert J. Storing ed., 1981).

Thus, the Founding generation adopted the Fourth

Amendment against the backdrop of “a going regime

of common law and equitable remedies through which

government officials could be held accountable for unlawful conduct, including constitutional violations.”

Richard H. Fallon, Jr., Bidding Farewell to Constitutional Torts, 107 Cal. L. Rev. 933, 942 (2019).

Consistent with each of these deeply embedded

principles, this Court in Bivens held that “damages

may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials,”

recognizing that “damages have been regarded as the

ordinary remedy for an invasion of personal interests

in liberty.” Bivens, 403 U.S. at 395. Bivens “vindicate[s] the Constitution by allowing some redress for

injuries, and it provides instruction and guidance to

federal law enforcement officers going forward.”

Ziglar v. Abbasi, 137 S. Ct. 1843, 1856-57 (2017).

Thus, “[t]he settled law of Bivens” is “a fixed principle

in the law.” Id. at 1857. While this Court has been

reluctant to extend Bivens to “any new context or new

category of defendants,” id. (quoting Corr. Servs. Corp.

v. Malesko, 534 U.S. 61, 68 (2001)), this case, like

Bivens itself, involves the historic remedy for violation

of constitutional guarantees by law enforcement officials—the civil damages remedy affirmed by the

Founding generation and applied by the courts

throughout our history. As history teaches, in this context, “it is damages or nothing.” Bivens, 403 U.S. at

410 (Harlan, J., concurring in the judgment); Tanzin,

141 S. Ct. at 492 (noting the damages may sometimes

be “the only form of relief” that can remedy violations

of federal law). The court below was correct to let

Boule’s suit go forward, and its judgment should be affirmed.

ARGUMENT

I. The Text and History of Article III Give the

Federal Courts Broad Judicial Power to Protect Constitutional Rights and Prevent Abuse

of Power by the Government.

Article III of the Constitution broadly extends the

“judicial Power” to nine categories of cases and controversies, including “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United

States, and Treaties made, or which shall be made, under their Authority.” U.S. Const. art. III, § 2, cl. 1. Article III’s plain language empowers the “judicial department” to “decide all cases of every description,

arising under the constitution or laws of the United

States,” extending to the federal courts the obligation

“of deciding every judicial question which grows out of

the constitution and laws.” Cohens v. Virginia, 19 U.S.

(6 Wheat.) 264, 382, 384 (1821).

The Constitution’s sweeping grant of judicial power

to the newly created federal courts was a direct response to one of the infirmities of the Articles of Confederation, which established a single branch of the

federal government and no independent court system.

See Akhil Reed Amar, Of Sovereignty and Federalism,

96 Yale L.J. 1425, 1443 (1987) (explaining that Confederation courts were “pitiful creatures of Congress,

dependent on its pleasure for their place, tenure, salary, and power”). Under the dysfunctional Articles of

Confederation government, individuals could not go to

court to enforce federal legal protections, prompting

Alexander Hamilton to observe that “[l]aws are a dead

letter without courts to expound and define their true

meaning and operation.” The Federalist No. 22, supra,

at 150.

The Framers recognized that “there ought always

. . . be a constitutional method of giving efficacy to constitutional provisions. What, for instance, would avail

restrictions on the authority of the State legislatures,

without some constitutional mode of enforcing the observance of them? . . . No man of sense will believe

that such prohibitions would be scrupulously regarded

without some effectual power in the government to restrain or correct the infractions of them.” The Federalist No. 80, supra, at 475-76 (Alexander Hamilton).

At the Philadelphia Convention, the Framers extensively debated different possible means to ensure

compliance with the Constitution. As the Convention

unfolded, the Framers chose judicial review as a critical constitutional check designed to preserve liberty

and ensure constitutional accountability. While the

judiciary would not have “the sword or the purse,” The

Federalist No. 78, supra, at 465 (Alexander Hamilton),

it would have broad powers to enforce constitutional

limitations and maintain the rule of law in adjudicating cases and controversies.

Over the course of the Convention, the Framers expanded the jurisdiction of the federal courts to ensure

that the Article III judiciary would be “competent to

the decision of any question arising out of the Constitution,” 4 Elliot’s Debates at 156, and federal laws, giving the federal courts the power to decide “all questions arising upon their construction, and in a judicial

manner to carry those laws into execution,” Luther

Martin, The Genuine Information, Delivered to the

Legislature of the State of Maryland, Relative to the

Proceedings of the General Convention (Nov. 29, 1787),

reprinted in 3 Farrand’s Records at 220.

In the ensuing debates over ratification of the Constitution, Federalists and Anti-Federalists alike

agreed that Article III gave the federal courts broad

powers to enforce the Constitution’s limits on the

power of government. In the state ratifying conventions, supporters of the Constitution repeatedly argued that the judicial branch would provide a critical

check on the political branches, guaranteeing individual rights and ensuring compliance with the Constitution’s structure.

In the Virginia ratifying convention, John Marshall argued, “[t]o what quarter will you look for protection from an infringement on the Constitution, if

you will not give the power to the judiciary? There is

no other body that can afford such a protection.” 3 Elliot’s Debates at 554. James Madison explained the

Constitution’s “new policy” of submitting constitutional questions to the “judiciary of the United States”:

“[t]hat causes of a federal nature will arise, will be obvious to every gentleman who will recollect that the

states are laid under restrictions, and that the rights

of the Union are secured by these restrictions.” Id. at

532. In the North Carolina ratifying convention, Richard Dobbs Spaight insisted that “if any man is injured

by an officer of the United States, he could get redress

by a court of law.” 4 id. at 37.

Anti-Federalists complained bitterly about Article

III’s broad sweep, insisting that “[t]he jurisdiction of

all cases arising under the Constitution and the laws

of the Union is of stupendous magnitude.” 3 id. at 565.

But these arguments did not carry the day. Rejecting

Anti-Federalist claims that the breadth of judicial

power conferred in Article III was too sweeping, the

American people ratified the Constitution, giving the

newly created federal courts broad judicial power to

ensure that “the Constitution should be carried into

effect, that the laws should be executed, justice equally

done to all the community, and treaties observed.” 4

id. at 160. The American people recognized that

“[t]hese ends can only be accomplished by a general,

paramount judiciary.” Id.

In 1789, when the Bill of Rights was added to the

Constitution, the Framers reaffirmed the role of the

federal courts in ensuring that the government would

respect constitutional limitations. Introducing the Bill

of Rights in Congress, James Madison observed that if

it were “incorporated into the constitution, independent tribunals of justice will consider themselves in a

peculiar manner the guardians of those rights.” 1 Annals of Cong. 457 (1789) (Joseph Gales ed., 1834).

“[T]hey will be an impenetrable bulwark against every

assumption of power in the legislative or executive,” he

went on, and “they will be naturally led to resist every

encroachment upon rights expressly stipulated for in

the constitution by the declaration of rights.” Id.

Just as Madison had recognized that “causes of a

federal nature” will arise under those provisions of the

Constitution in which “states are laid under restrictions,” 3 Elliot’s Debates at 532, Madison insisted

that the federal courts would have the obligation to enforce the rights laid out in the Bill of Rights in cases

that came before them. Judicial review was the key to

ensuring that the guarantees of the Bill of Rights were

not “paper barriers . . . too weak to be worthy of attention,” but rather real, enforceable limits on the power

of the federal government that would operate “against

the majority in favor of the minority.” 1 Annals of

Cong. 455, 454 (1789).

In creating an independent federal judiciary with

the power to enforce constitutional limitations and

maintain the rule of law, the Framers incorporated

long established common law principles that allowed

courts to vindicate individual rights and enforce the

rule of law, as the next Section discusses.

II. The Framers Wrote Article III to Ensure that

Where There Is a Legal Right, There Is a Legal Remedy for Infringement of that Right.

The Constitution was written, debated, and ratified

against a legal backdrop that ensured that federal officers could be held accountable for violating constitutionally guaranteed rights. See Andrew Kent, Lessons

for Bivens and Qualified Immunity Debates From

Nineteenth-Century Damages Litigation Against Federal Officers, 96 Notre Dame L. Rev. 1755, 1758 (2021)

(“[T]he Framers and ratifiers of the Constitution in

1787–88 expected that common law or general law

would supply forms of action to contest many kinds of

misconduct by federal officers.”); Fallon, supra, at 94243 (“When harmed by official misconduct at the dawn

of constitutional history, aggrieved parties could normally seek redress by invoking forms of action available at common law and in equity that included suits

against governmental officials under ordinary tort

law.”). The Framers, who recognized that legal rights

are meaningless if individuals lack the ability to go to

court to obtain a remedy when a right is violated,

wrote Article III to ensure that such legal remedies

would be available under the new constitutional structure they were creating.

Steeped in the writings of Sir William Blackstone,

the Framers understood that rights and remedies

must go hand in hand if courts are to play their essential role in the Constitution’s system of separation of

powers: expounding the law and vindicating individual liberty. See The Federalist No. 43, supra, at 274

(James Madison) (“[A] right implies a remedy.”). As

Blackstone had written, it was a “general and indisputable rule, that where there is a legal right, there is

also a legal remedy, by suit or action at law, whenever

that right is invaded.” 3 William Blackstone, Commentaries on the Laws of England *23 (1768). “[I]n

vain would rights be declared, in vain directed to be

observed,” Blackstone explained, “if there were no

method of recovering and asserting those rights, when

wrongfully withheld or invaded. This is what we mean

properly, when we speak of the protection of the law.”

1 id. at 56; see Spokeo, Inc. v. Robins, 136 S. Ct. 1540,

1551 (2016) (Thomas, J., concurring) (“Historically,

common-law courts possessed broad power to adjudicate suits involving the alleged violation of private

rights, even when plaintiffs alleged only the violation

of those rights and nothing more.”); Transunion LLC

v. Ramirez, 141 S. Ct. 2190, 2218 (2021) (Thomas, J.,

dissenting) (observing that “[t]he principle that the violation of an individual right gives rise to an actionable harm was widespread at the founding”).

These fundamental rule-of-law values were affirmed by a number of Founding-era state constitutions, which explicitly guaranteed redress for violations of legal rights. For example, the Massachusetts

Constitution of 1780 provided that “[e]very subject . . . ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he

may receive in his person, property, or character.”

Mass. Const. of 1780, art. XI. It then further elaborated on that principle, providing that “[h]e ought to

obtain right and justice freely, and without being

obliged to purchase it; completely, and without any denial; promptly, and without delay, conformably to the

laws.” Id. Other state constitutions used similar formulations to protect the right of individuals to seek redress in the courts for violations of their legal rights.

See, e.g., Md. Const. of 1776, art. XVII; N.H. Const. of

1784, art. XIV; Vt. Const. of 1786, ch. 1, para. 4; Pa.

Const. of 1790, art. IX, § 11; Del. Const. of 1792, art. I,

§ 9; Ky. Const. of 1792, art. XII, § 13; Tenn. Const. of

1796, art. XI, § 17.

In Marbury v. Madison, Chief Justice Marshall recognized that the U.S. Constitution secured these fundamental rule-of-law principles. As he explained it,

under Article III, the “province of the court is, solely,

to decide on the rights of individuals,” and he invoked

Blackstone’s discussion of common law principles that

ensure that “‘every right, when withheld, must have a

remedy, and every injury its proper redress.’” Marbury, 5 U.S. at 170, 163 (quoting 3 Blackstone, supra,

at *109). As Marbury observed, a broad understanding of the individual’s right to go to court to redress

violations of personal rights was necessary to ensure

“[t]he very essence of civil liberty”—“the right of every

individual to claim the protection of the laws, whenever he receives an injury”—and ensure our Constitution’s promise of a “government of laws, and not of

men.” Id. at 163.

“From the earliest years of the Republic, the Court

has recognized the power of the Judiciary to award appropriate remedies to redress injuries actionable in

federal court,” Franklin v. Gwinnett Cty. Pub. Sch.,

503 U.S. 60, 66 (1992), beginning with Marbury. In

Marbury, it did not matter that federal law did not

grant an express right of action to Marbury, or even

that “the mandamus, now moved for, is not for the performance of an act expressly enjoined by statute.” 5

U.S. at 172. Because the refusal to deliver the commission violated his individual right to the office, Marbury had “a right to resort to the laws of his country

for a remedy.” Id. at 166; id. at 165 (explaining that

such suits are “examinable in a court of justice”). For

more than two centuries, the “historic judicial authority to award appropriate relief . . . has been thought

necessary to provide an important safeguard against

abuses of legislative and executive power . . . as well

as to ensure an independent Judiciary.” Franklin, 503

U.S. at 74; see Martin v. Hunter’s Lessee, 14 U.S. (1

Wheat.) 304, 350 (1816) (rejecting a construction of Article III that “would, in many cases,” result in “rights

without corresponding remedies”); Kendall v. United

States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 624 (1838)

(explaining that it would be a “monstrous absurdity in

a well organized government, that there should be no

remedy, although a clear and undeniable right should

be shown to exist”).

The Framers’ linkage of rights and remedies is evident not only in Article III, but also in the text and

history of the Fourth Amendment. As the next Section

shows, the Founding generation enshrined in the Constitution a broad guarantee of freedom from unreasonable searches and seizures against the backdrop of

landmark English cases in which juries awarded damages in civil suits to check abuse of authority by the

Crown. The historical record makes clear that the

Founding generation viewed civil damage suits

against federal law enforcement officers as essential to

checking abuses of power.

III. The Framers of the Fourth Amendment

Viewed Civil Damage Suits Against Government Officers as a Critical Bulwark Against

Government Overreach.

The Founding generation “crafted the Fourth

Amendment as a ‘response to the reviled general warrants and writs of assistance of the colonial era, which

allowed British officers to rummage through homes in

an unrestrained search for evidence of criminal activity.’” Carpenter v. United States, 138 S. Ct. 2206, 2213

(2018) (quoting Riley v. California, 573 U.S. 373, 403

(2014) (quotation marks omitted)). The Framers

viewed these indiscriminate searches as “‘the worst instrument of arbitrary power’ . . . because they placed

‘the liberty of every man in the hands of every petty

officer.’” Stanford v. Texas, 379 U.S. 476, 481 (1965)

(quoting Boyd v. United States, 116 U.S. 616, 625

(1886)). As the history of the Fourth Amendment

shows, the Framers viewed civil damage actions—the

very kind of suits cognizable under Bivens—as a critical check on abuse of power by the government.

The Framers’ understanding of the guarantee

against unreasonable searches and seizures was

shaped by a host of foundational English cases decided

in the 1760s, see Wilkes v. Wood, 19 How. St. Tr. 1153

(C.P. 1763); Huckle v. Money, 95 Eng. Rep. 768 (K.B.

1763); Entick v. Carrington, 19 How. St. Tr. 1029 (C.P.

1765); Leach v. Money, 19 How. St. Tr. 1001 (K.B.

1765), in which juries awarded tort damages to individuals whose homes were invaded or whose papers

were searched by the King’s officers. These cases, all

growing out of warrants issued in response to the publication of the North Briton No. 45, a pamphlet critical

of the King, put center stage the role of the jury in

awarding damages and limiting abuse of power by the

government.

As an attorney argued in Wilkes, the most prominent of these cases, “the constitution of our country

had been so fatally wounded, that it called aloud for

the redress of a jury of Englishmen.” Wilkes, 19 How.

St. Tr. at 1154. The jury, he argued, should perform

its role of “instructing those great officers in their duty,

and that they (the jury) would now erect a great sea

mark, by which our state pilots might avoid, for the

future, those rocks upon which they now lay shipwrecked.” Id. at 1155. The jury’s award of £4,000 in

damages, “roughly equivalent to £500,000 today,”

vindicated these arguments. See Hon. M. Blane Michael, Reading the Fourth Amendment: Guidance from

the Mischief That Gave It Birth, 85 N.Y.U. L. Rev. 905,

910 (2010).

Wilkes and other cases like it demonstrated to the

Framers that civil actions for damages were an essential method of protecting individual liberty and limiting abuse of power, preventing “the secret cabinets and

bureaus of every subject in this kingdom [from] be[ing]

thrown open to the search and inspection of a messenger, whenever the secretary of state shall think fit.”

Entick, 19 How. St. Tr. at 1063. Time and again, the

British courts rejected the use of general warrants to

immunize officers from liability as “totally subversive

of the liberty of the subject,” Wilkes, 19 How. St. Tr. at

1167, instead upholding damage awards that, in some

cases, were quite substantial. See Amar, Fourth

Amendment First Principles, supra, at 797 (“As civil

plaintiffs, John Wilkes and company . . . had recovered

a King’s ransom from civil juries to teach arrogant officialdom a lesson and to deter future abuse.”); George

C. Thomas III, Stumbling Toward History: The Framers’ Search and Seizure World, 43 Tex. Tech. L. Rev.

199, 215 (2010) (“[T]ort law brought the king, his ministers, and his secretary of state to their knees.”).

In Wilkes, for example, the court specifically affirmed the power of the jury to award damages “not

only as a satisfaction to the injured person, but likewise as a punishment to the guilty, to deter from any

such proceeding for the future.” 19 How. St. Tr. at

1167; see Huckle, 95 Eng. Rep. at 769 (upholding jury’s

award of “exemplary damages” in light of the “great

point of law touching the liberty of the subject” and the

Crown’s “exercising arbitrary power, violating Magna

Charta, and attempting to destroy the liberty of the

kingdom”).

Wilkes, as well as other cases, were widely covered

in American newspapers, and “the reaction of the colonial press to that controversy was intense, prolonged,

and overwhelmingly sympathetic to Wilkes.” William

J. Cuddihy, The Fourth Amendment: Origins and

Original Meaning 602–1791, at 538 (2009). As this

Court observed in Boyd, “every American statesman,

during our revolutionary period and formative period

as a nation, was undoubtedly familiar” with these

“landmarks of English liberty,” Boyd, 116 U.S. at 626,

which had a powerful effect on the framing of the

Fourth Amendment, see Michael, supra, at 906 (“The

early mischief—the British Crown’s unbridled power

of search—is at the center of the rich history that led

to the adoption of the Fourth Amendment.”).

The failure to include a Bill of Rights in the original Constitution launched an avalanche of criticism,

as many insisted that the Constitution was deficient

without guarantees for substantive fundamental

rights essential to liberty, including rights of personal

security. Anti-Federalists lamented that without a

Bill of Rights, “any man may be seized, any property

may be taken, in the most arbitrary manner, without

any evidence or reason. Every thing the most sacred

may be searched and ransacked by the strong hand of

power.” 3 Elliot’s Debates at 588; see Maryland v.

King, 569 U.S. 435, 467 (2013) (Scalia, J., dissenting).

They feared that “[t]he officers of Congress may come

on you now, fortified with all the terrors of paramount

federal authority.” 3 Elliot’s Debates at 448. Those

who fought to add the Fourth Amendment to the Constitution emphasized, in line with Wilkes, the role of

the courts in checking governmental abuse by law enforcement officers. Civil damage actions, they understood, were critical to prevent abuse of power by officers of the federal government. “To Americans, one

lesson of the Wilkes Cases was that juries could avert

outrageous searches by subjecting those responsible to

exemplary, financial damage.” Cuddihy, supra, at

760.

Proponents of the Bill of Rights consistently emphasized the role of, and the need for, civil damage

remedies to curb the unbridled discretion of federal officers. For example, a Maryland Anti-Federalist essayist, writing under the name of “A Farmer,” insisted

on the constitutional checking function performed by

civil damages remedies, referring to the role juries had

played in the Wilkes case. “[N]o remedy has been yet

found equal to the task of deter[r]ing and curbing the

insolence of office, but a jury” because “[i]t has become

an invariable maxim of English juries, to give ruinous

damages whenever an officer has deviated from the

rigid letter of the law, or been guilty of an unnecessary

act of insolence or oppression.” Essays by A Farmer

(I), Baltimore Md. Gazette, Feb. 15, 1788, reprinted in

5 The Complete Anti-Federalist, supra, at 14. Likewise, Marylander Luther Martin emphasized that

“jury trials”—which he called “the surest barrier

against arbitrary power, and the palladium of liberty”—were “most essential for our liberty . . . in every

case . . . between governments and its officers on the

one part, and the subject or citizen on the other.” Martin, supra, in 3 Farrand’s Records at 221-22 (emphasis

omitted). To the Founding generation, “the right to

trial by jury” was “‘the heart and lungs, the mainspring and the center wheel’ of our liberties, without

which ‘the body must die; the watch must run down;

the government must become arbitrary.’” United

States v. Haymond, 139 S. Ct. 2369, 2375 (2019) (opinion of Gorsuch, J.) (quoting Letter from Clarendon to

W. Pym (Jan. 27, 1766), in 1 Papers of John Adams

169 (R. Taylor ed., 1977)).

Elsewhere, too, Anti-Federalists highlighted the

need for civil damage remedies to prevent abuse of government power. During debates in Pennsylvania in

1787, one Anti-Federalist writer argued that if “a constable, having a warrant to search for stolen goods,

pulled down the clothes of a bed in which there was a

woman, and searched under her shift . . . a trial by jury

would be our safest resource” because “heavy damages

would at once punish the offender, and deter others

from committing the same.” Essay of A Democratic

Federalist, Penn. Herald, Oct. 17, 1787, reprinted in 3

The Complete Anti-Federalist, supra, at 61. Likewise,

in Massachusetts, the essayist Hampden insisted that

“without [a jury], in civil actions, no relief can be had

against the High Officers of State, for abuse of private

citizens.” Essays by Hampden, Mass. Centinel, Feb. 2,

1788, reprinted in 4 The Complete Anti-Federalist, supra, at 200.

These arguments carried the day, and the Bill of

Rights was added to the Constitution, establishing

broad protections “indispensable to the full enjoyment

of the rights of personal security, personal liberty, and

private property.” 3 Joseph Story, Commentaries on

the Constitution of the United States § 1895, at 748

(1833). As this history shows, the Framers expected

the courts to be an “impenetrable bulwark against

every assumption of power in the legislative or executive” and to “resist every encroachment upon [fundamental] rights,” 1 Annals of Cong. 457 (1789), using

the time-honored tool of civil damages to prevent individuals from being subject to “all the terrors of paramount federal authority,” 3 Elliot’s Debates at 448.

IV. Courts in the Founding Generation Vindicated Fundamental Rights by Granting Damages Remedies in Common Law Tort Suits.

Consistent with this history, Americans courts of

the early Republic vindicated constitutional rights

through common law tort actions, such as trespass and

malicious prosecution. As this Court recently observed, “[i]n the early Republic, ‘an array of writs . . .

allowed individuals to test the legality of government

conduct by filing suit against government officials’ for

money damages ‘payable by the officer.’ These common law causes of action remained available through

the 19th century and into the 20th.” Tanzin, 141 S.

Ct. at 491 (quoting James E. Pfander & Jonathan L.

Hunt, Public Wrongs and Private Bills: Indemnification and Government Accountability in the Early Republic, 85 N.Y.U. L. Rev. 1862, 1871-75 (2010)); see

Ann Woolhandler, Patterns of Official Immunity and

Accountability, 37 Case W. Res. L. Rev. 396, 399 (1987)

(“The predominant method of suing officers in the

early nineteenth century was an allegation of common

law harm, particularly a physical trespass. The issue

of whether the action was authorized by existing statutory or constitutional law was introduced by way of a

defense and reply when the officer pleaded justification.”). Congress might choose to indemnify the officer

after the fact, but it was the responsibility of the courts

in the first instance to uphold the rule of law by holding the federal officer accountable for violating the

plaintiff’s rights. See Pfander & Hunt, supra, at 1868.

Egbert insists that, as a matter of separation of

powers, he cannot be sued for damages in federal court

unless Congress provides a cause of action because

“only Congress can create damages actions.” Pet. Br.

11. But “this exact remedy has coexisted with our constitutional system since the dawn of the Republic,”

Tanzin, 141 S. Ct. at 493, without the express cause of

action Egbert insists is necessary. Indeed, from the

Founding on, this Court has permitted damages

awards against federal officers under nonstatutory

common law claims—the legal backdrop against which

the Constitution was written, debated, and ratified.

“At the Founding, and for much of American history,

there was no question as to whether federal courts had

the power to provide judge-made damages remedies

against individual federal officers. Not only did federal courts routinely provide such relief, but the Supreme Court repeatedly blessed the practice.” Stephen

I. Vladeck, The Disingenuous Demise and Death of

Bivens, 2019-2020 Cato Sup. Ct. Rev. 263, 267 (2020).

For example, in Little v. Barreme, 6 U.S. (2 Cranch)

170 (1804), a U.S. naval officer seized a Danish vessel

on the high seas, claiming authority to do so based on

the Nonintercourse Act and presidential instructions

commanding such seizures. Id. at 170-71. Chief Justice Marshall’s opinion for the Court held that the federal officer “must be answerable in damages,” concluding that the orders Little received could not “legalize

an act which without those instructions would have

been a plain trespass.” Id. at 179. Insisting that those

injured by abuse of power had a right to go to court,

Chief Justice Marshall refused to draw a line “between

acts of civil and those of military officers” or “between

proceedings within the body of the country and those

on the high seas.” Id.

This Court’s cases permitted individuals to sue to

redress a broad range of abuse of power by federal officials. In Wise v. Withers, 7 U.S. (3 Cranch) 331

(1806), this Court permitted an action for trespass vi et

armis (a trespass action for force resulting in harm) to

go forward against a federal militia officer who was

seeking to collect fines from Wise, a U.S. justice of the

peace. Id. at 332. Withers had entered Wise’s home

and seized his property to satisfy a fine, which had

been imposed by a court-martial for failure to serve.

Id. Finding that a justice of the peace was exempt

from militia duty and the court-martial lacked jurisdiction over him, this Court held that Wise was entitled to recover, finding that “[t]he court and the officer

are all trespassers.” Id. at 337.

In Mitchell v. Harmony, 54 U.S. (13 How.) 115

(1852), this Court affirmed a jury verdict against a

U.S. army officer who unlawfully seized the plaintiff’s

property pursuant to a superior’s orders. Id. at 116.

Declaring that “mere suspicions of an illegal intention

will not authorize a military officer to seize and detain

the property of an American citizen,” id. at 133, this

Court held that “the order given was an order to do an

illegal act; to commit a trespass upon the property of

another; and can afford no justification to the person

by whom it was executed,” id. at 137.

State courts, too, permitted tort actions to go forward against federal officers who abused their authority to search and seize in a number of different contexts. In Imlay v. Sands, 1 Cai. R. 566 (N.Y. Sup. Ct.

1804), the New York Supreme Court granted judgment to the plaintiff in a trespass action arising out of

the seizure of goods by a federal customs collector. Id.

at 573. Observing that the “officer seizes at his peril”

and that “there was no real ground for the seizure,” the

court insisted that its duty was to “pronounce the law

as we find it, and leave cases of hardship, where any

exist, to legislative provision.” Id.; see Wilson v.

McKenzie, 7 Hill 95, 95 (N.Y. Sup. Ct. 1845) (permitting trespass action against a naval officer for assaulting and imprisoning one of his subordinates).

In Merriam v. Mitchell, 13 Me. 439 (1836), the

Maine Supreme Court upheld a damage award against

a federal postal inspector for malicious prosecution.

Finding no basis for bringing “a prosecution against an

innocent and unoffending man, who had given no color

for suspicion against him,” the court concluded that

“[r]eparation is demanded in such a case, by the plainest dictates of common justice.” Id. at 457. The court

upheld the jury’s finding of malice, concluding that it

had “a right to do so, from the want of probable cause.”

Id. at 458; see Bauduc’s Syndic v. Nicholson, 2 La. 200,

203 (1831) (holding that a federal court marshal “is not

perhaps amenable to the State Court, in his official capacity, as marshal,” but “if in that capacity, he wrongs

a citizen of the State, he is individually answerable,

and in her courts”); Hirsch v. Rand, 39 Cal. 315, 318

(1870) (reinstating trespass suit where a U.S. marshal

“arrested and imprisoned the plaintiff without probable cause, or lawful authority to do so”).

These Founding-era principles, which make plain

that “[n]o officer of the law may set that law at defiance with impunity,” Lee, 106 U.S. at 220, are deeply

rooted in this Court’s case law, see, e.g., Bates v. Clark,

95 U.S. 204, 209 (1877); Belknap v. Schild, 161 U.S.

10, 19 (1896); Phila. Co. v. Stimson, 223 U.S. 605, 61920 (1912); Butz v. Economou, 438 U.S. 478, 489-90

(1978), and form the backdrop for this Court’s decision

in Bivens, as the next Section discusses.

V. A Bivens Action Is Appropriate Where Federal Law Enforcement Officers Violate Constitutional Rights.

Consistent with the Constitution’s text and history

and with the rich history of common law actions for

unlawful conduct by federal officers, this Court in

Bivens held that “damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials.” Bivens, 403 U.S. at 395. As

this Court explained, “damages have been regarded as

an ordinary remedy for an invasion of personal interests in liberty.” Id.; Bush v. Lucas, 462 U.S. 367, 378

(1983) (explaining that, under Bivens, in the Fourth

Amendment context, “[t]he federal courts’ statutory jurisdiction to decide federal questions confers adequate

power to award damages to the victim of a constitutional violation”). In reaching that result, this Court

embraced Founding-era principles recognizing that

“the judiciary has a particular responsibility to assure

the vindication of constitutional interests such as

those embraced by the Fourth Amendment,” Bivens,

403 U.S. at 407 (Harlan, J., concurring in the judgment), and that “‘rights’ and ‘remedies’” are “link[ed]”

in “a 1:1 correlation,” id. at 400 n.3.

Under Bivens, when federal law supplies a basis

for jurisdiction and when “some form of damages is the

only possible remedy,” id. at 409, “a traditional judicial

remedy such as damages is appropriate to the vindication of the personal interests protected by the Fourth

Amendment,” id. at 399. The government in Bivens

argued that a plaintiff seeking damages for an unconstitutional search and seizure may only bring a state

common law tort action, relying on the historical pedigree of such suits. But Bivens rejected that approach,

recognizing that “[t]he interests protected by state

laws regulating trespass and the invasion of privacy,

and those protected by the Fourth Amendment’s guarantee against unreasonable search and seizures, may

be inconsistent or even hostile.” Id. at 394 (majority

opinion). Given “the limitations on state remedies for

violation of common-law rights,” Bivens permitted a

federal claim for violation of the Fourth Amendment’s

federal constitutional guarantee against unreasonable

searches and seizures, insisting that these kinds of

constitutional “injuries be compensable according to

uniform rules of federal law.” Id. at 409 (Harlan, J.,

concurring in the judgment); see Henry Friendly, In

Praise of Erie—And the New Federal Common Law, 39

N.Y.U. L. Rev. 383, 405 (1964) (arguing that Erie permits the development of a “specialized federal common

law” in “areas of national concern that is truly uniform”).

Some of Egbert’s amici argue that Bivens broke

from tradition by recognizing a free-standing federal

claim against a federal officer rather than a state common law-claim. See, e.g., Br. of Professor Jennifer

Mascott 5-7. But this argument ignores the longstanding tradition of accountability for government abuse

against which the Constitution was drafted and ratified; under that tradition, legal remedies were available for abuse of power by federal law enforcement officers. Bivens simply ensured that tradition would

continue to exist by recognizing a federal claim against

federal officers who violate the Fourth Amendment. In

so doing, it also protected federal officers from being

subject to the vagaries of fifty different common law

regimes. In any event, today a state common law suit

is no longer available because the Westfall Act forecloses common-law tort suits against federal officers.

28 U.S.C. § 2679(b)(1); Minneci v. Pollard, 565 U.S.

118, 126 (2012). Tellingly, the Westfall Act does permit suits against federal employees for violation of

constitutional rights, § 2679(b)(2)(A), which this Court

has called an “explicit exception for Bivens claims,”

Hui v. Castenada, 559 U.S. 799, 807 (2010)—powerful

evidence that Congress has put its imprimatur behind

the Bivens remedy.

Bivens reflects the Framers’ view that a civil remedy is necessary to prevent individuals from being subjected to “all the terrors of paramount federal authority.” 3 Elliot’s Debates at 448. Otherwise, federal lawenforcement officers would have the untrammeled

authority to search and seize, producing the unchecked concentration of power the Framers feared.

Bivens’ “continued force” and “necessity” in the

“search-and-seizure context in which it arose,” Ziglar,

137 S. Ct. at 1856, follows from the Constitution’s text

and history.

Boule’s lawsuit against Egbert falls squarely

within the core of Bivens. Within the territorial

United States, Egbert invaded Boule’s property, assaulted him, and then retaliated against him after

Boule complained about Egbert’s abuse of authority.

Permitting this suit to go forward under Bivens would

not be fashioning a newly minted cause of action, cf.

Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1414 (2018)

(Gorsuch, J., concurring in part and concurring in the

judgment), but simply ensuring that federal law enforcement officers can be held accountable for violating

constitutionally guaranteed rights, as constitutional

text and history require.

Egbert, however, claims that Boule’s suit differs

sharply from Bivens because it involves immigrationrelated law enforcement and because the claims in this

case arise out of both the First and Fourth Amendments. Pet. Br. 25-41. These arguments are meritless.

The fact that Egbert is a Border Patrol agent does

not meaningfully distinguish him from the unnamed

FBI officers who invaded the home of Homer Bivens

without a warrant. Like Bivens, this case involves federal law enforcement officials violating an individual’s

constitutional rights within the territorial United

States. Nor do the facts of this case present any of the

concerns that led this Court in Hernandez v. Mesa, 140

S. Ct. 735 (2020), to carve out a narrow exception to

the rule that “the settled law of Bivens” governs in the

“common and recurrent sphere of law enforcement.”

Ziglar, 137 S. Ct. at 1857; Hernandez, 140 S. Ct. at 739

(“Because of the distinctive characteristics of crossborder shooting claims, we refuse to extend Bivens into this new field.”). While the events of

this case arose near the U.S.-Canada border, Egbert’s

assault of, and retaliation against, Boule had no “potential effect on foreign relations” or any meaningful

relationship to the work of officers who “are stationed

at the border and have the responsibility of attempting

to prevent illegal entry.” Id. at 744, 746; Resp. Br. 3336. When Egbert invaded Boule’s property and assaulted him, he was targeting a guest of Boule’s bedand-breakfast establishment who had entered the

United States at a lawful point of entry thousands of

miles away. Enforcing the nation’s criminal laws, of

course, is critically important work, but since the beginning of the American republic, federal law enforcement officers have been subject to suit when they violate constitutionally guaranteed rights. There is no

compelling reason to carve out an exception from this

critical rule of constitutional accountability for Egbert.

Egbert also claims that Bivens should not be extended to First Amendment retaliation claims, insisting that “First Amendment retaliation claims are unusually broad” and that permitting First Amendment

claims of this sort “would balloon the range of potential

defendants and conduct potentially subject to damages.” Pet. Br. 27. But this Court has already said

that “when the vengeful officer is federal, he is subject

to an action for damages on the authority of Bivens.”

Hartmann v. Moore, 547 U.S. 250, 256 (2006); Resp.

Br. 41. And where the retaliation is inextricably related to the underlying Fourth Amendment violation,

the individual’s right to sue to redress an unconstitututional search and seizure also supports a First

Amendment claim for retaliation. The basic insight of

both Bivens and the Constitution’s text and history—

that a right to sue is necessary to hold federal law enforcement officers accountable—applies equally to

both claims.

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be affirmed.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

DAVID H. GANS

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 501

Washington, DC 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

January 26, 2022

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.