Amicus Curiae Brief — Erik Egbert, Petitioner v. Robert Boule
Supreme Court briefJan 26, 2022
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No. 21-147
IN THE
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_______________
ERIK EGBERT,
Petitioner,
v.
ROBERT BOULE,
Respondent.
_______________
On Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
_______________
BRIEF OF THE DKT LIBERTY PROJECT, LAW
ENFORCEMENT ACTION PARTNERSHIP,
AND RETIRED CBP OFFICER JAMES WONG
AS AMICI CURIAE
IN SUPPORT OF RESPONDENT
_______________
JACOB T. SPENCER
LISA A. BENDER
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue N.W.
Washington, DC 20036
LAUREN M. KOLE
GIBSON, DUNN & CRUTCHER LLP
1801 California Street, Ste. 4200
Denver, CO 80202
THEANE EVANGELIS
Counsel of Record
JAMES TSOUVALAS
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
(213) 229-7726
tevangelis@gibsondunn.com
Counsel for Amici Curiae
QUESTIONS PRESENTED
1. Whether a damages claim lies under Bivens v.
Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), when a rogue federal
law enforcement officer triggers multiple unfounded
investigations against a U.S. citizen as retaliation for
the citizen’s truthful reporting of the officer’s misconduct.
2. Whether a damages claim lies under Bivens
when a rogue federal law enforcement officer enters a
U.S. citizen’s private property within the United
States without a warrant, conducts an unauthorized
search, and assaults the citizen on his property.
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........................................i
INTEREST OF AMICI CURIAE ................................ 1
INTRODUCTION AND SUMMARY OF
ARGUMENT ............................................................... 2
ARGUMENT ............................................................... 4
I.
BIVENS IS AN EFFECTIVE TOOL FOR
PROTECTING FOURTH AMENDMENT
RIGHTS.......................................................... 4
II.
BIVENS IS AN ESPECIALLY IMPORTANT
TOOL AT THIS MOMENT .............................. 12
III. BIVENS DOES NOT POSE AN UNDUE
THREAT TO FEDERAL LAW
ENFORCEMENT............................................ 18
IV. THE “IMMIGRATION-RELATED” LINE
PETITIONER URGES IS A WHOLLY
UNWORKABLE ONE ..................................... 21
CONCLUSION .......................................................... 24
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Bivens v. Six Unknown Named Agents
of Fed. Bureau of Narcotics,
403 U.S. 388 (1971) ................................................ 2
Butz v. Economou,
438 U.S. 478 (1978) ........................................ 19, 20
City of Riverside v. Rivera,
477 U.S. 561 (1986) ................................................ 9
Hamdi v. Rumsfeld,
542 U.S. 507 (2004) .............................................. 23
Hernandez v. Mesa,
140 S. Ct. 735 (2020) ............................................ 18
Lanuza v. Love,
899 F.3d 1019 (9th Cir. 2018) .............................. 22
Williams v. Florida,
399 U.S. 78 (1970) ................................................ 20
Ziglar v. Abbasi,
137 S. Ct. 1843 (2017) ............................ 2, 4, 18, 23
Statutes
8 U.S.C. § 1357(a)(5)(A) ............................................ 21
42 U.S.C. § 1983 .................................................... 3, 19
iv
TABLES OF AUTHORITIES (continued)
Page(s)
Other Authorities
Aimee Ortiz, Confidence in Police Is at
Record Low, Gallup Survey Finds,
NY Times (Aug. 12, 2020),
https://tinyurl.com/dh00vlnt .......................... 14, 15
Alexander A. Reinert, Measuring the
Success of Bivens Litigation and Its
Consequences for the Individual
Liability Model, 62 Stan. L. Rev. 809
(2010) ................................................................ 5, 11
Brandon Hasbrouck, Abolishing Racist
Policing With the Thirteenth
Amendment, 67 UCLA L. Rev. 1108
(2020) .................................................................... 13
Catherine Fisk & Erwin Chemerinsky,
Civil Rights Without Remedies:
Vicarious Liability Under Title VII,
Section 1983, and Title IX, 7 Wm. &
Mary Bill Rts. J. 755 (1999)................................... 9
Cheryl Corley, Police Settlements: How
the Cost of Misconduct Impacts
Cities and Taxpayers, NPR (Sept. 19,
2020), https://tinyurl.com/2enbq5dl .................... 10
v
TABLES OF AUTHORITIES (continued)
Page(s)
Elias R. Feldman, Strict Tort Liability
for Police Misconduct, 53 Colum. J.
L. & Soc. Probs. 89 (2019) .............................. 13, 14
Geneva Sands, Customs and Border
Protection Drone Flew over
Minneapolis to Provide Live Video to
Law Enforcement, CNN (May 29,
2020), https://tinyurl.com/2p8mv8kn .................. 22
Importance of Police-Community
Relationships and Resources for
Further Reading, Department of
Justice, https://tinyurl.com/1rg21btx .................. 15
In Pursuit of Peace: Building PoliceCommunity Trust to Break the Cycle
of Violence, Giffords Law Center
(Jan. 2020),
https://tinyurl.com/7yhf42y6 ............................... 16
J. Gabriel Ware, Crime Victims Don’t
Report if They Don’t Trust Cops:
Study, The Crime Report (Dec. 13,
2018), https://tinyurl.com/yq3clz8m .................... 16
James E. Pfander et al., The Myth of
Personal Liability: Who Pays When
Bivens Claims Succeed, 72 Stan. L.
Rev. 561 (2020) ..................................................... 19
vi
TABLES OF AUTHORITIES (continued)
Page(s)
James E. Pfander, Iqbal, Bivens, and
the Role of Judge-Made Law in
Constitutional Litigation, 114 Penn
St. L. Rev. 1387 (2010) ........................................... 6
Joanna C. Schwartz, How Governments
Pay: Lawsuits, Budgets, and Police
Reform, 63 UCLA L. Rev. 1144
(2016) ...................................................................... 9
Joanna C. Schwartz, What Police Learn
From Lawsuits, 33 Cardozo L. Rev.
841 (2012) ........................................................... 7, 8
Jocelyn Fontaine et al., Mistrust and
Ambivalence Between Residents and
the Police: Evidence From Four
Chicago Neighborhoods, Urban
Institute (Aug. 2017),
https://tinyurl.com/1xpfnii9 ................................. 15
John C. Jeffries, Jr., The Liability Rule
For Constitutional Torts, 99 Va. L.
Rev. 207 (2013) ....................................................... 9
Karl Jacoby, Op-Ed: The Border
Patrol’s Brute Power in Portland Is
the Norm at the Border, L.A. Times
(July 22, 2020),
https://tinyurl.com/y9p74sx3 ............................... 22
vii
TABLES OF AUTHORITIES (continued)
Page(s)
Kit Ramgopal & Brenda Breslauer, The
Hidden Hand That Uses Money to
Reform Troubled Police
Departments, NBC News (July 19,
2020), https://tinyurl.com/39scutxe ..................... 10
Margo Schlanger, Inmate Litigation,
116 Harv. L. Rev. 1555 (2003) ............................... 9
Martin Kaste, When It Comes to Police
Reform, Insurance Companies May
Play a Role, NPR (Apr. 1, 2016),
https://tinyurl.com/szz6qgri ................................. 10
Megan Brenan, Americans’ Confidence
in Major U.S. Institutions Dips,
GALLUP (July 14, 2021),
https://tinyurl.com/27pxd8j9................................ 15
Melissa Mortazavi, Tort as Democracy:
Lessons From the Food Wars, 57
Ariz. L. Rev. 929 (2015) ....................................... 17
Myriam E. Gilles, In Defense of Making
Government Pay: The Deterrent
Effect of Constitutional Tort
Remedies, 35 Ga. L. Rev. 845 (2001) ..................... 6
viii
TABLES OF AUTHORITIES (continued)
Page(s)
New Era of Public Safety: An Advocacy
Toolkit for Fair, Safe, and Effective
Community Policing,
The Leadership Conference on Civil
and Human Rights (2019),
https://tinyurl.com/4ja3baax ................................ 14
New Era of Public Safety: A Guide to
Fair, Safe, and Effective Community
Policing, The Leadership Conference
on Civil and Human Rights (2019),
https://tinyurl.com/5dbqrewp ........................ 15, 17
No Action Taken: Lack of CBP
Accountability in Responding to
Complaints of Abuse, American
Immigration Council (May 2014),
https://tinyurl.com/2p9ycp28 ............................... 12
Public Opinion About the Border, at the
Border, US Immigration Policy
Center (Nov. 6, 2019),
https://tinyurl.com/3hy2dtt7 ................................ 13
Public Trust and Law Enforcement—A
Discussion for Policymakers,
Congressional Research Service
(July 13, 2020), https://tinyurl.com/3rm3mfpy ............................................ 17
ix
TABLES OF AUTHORITIES (continued)
Page(s)
Rachel B. Doyle, How Insurance
Companies Can Force Bad Cops Off
the Job, THE ATLANTIC (June 10,
2017), https://tinyurl.com/10b93ra7 .................... 10
Richard H. Fallon, Jr. & Daniel J.
Meltzer, New Law, NonRetroactivity, and Constitutional
Remedies, 104 Harv. L. Rev. 1731
(1991) .................................................................... 11
Still No Action Taken: Complaints
Against Border Patrol Agents
Continue to Go Unanswered,
American Immigration Council
(August 2017),
https://tinyurl.com/yw6hc8u4 .............................. 13
Theodore Eisenberg, Four Decades of
Federal Civil Rights Litigation 12 J.
Empirical Legal Stud. 4 (2016)............................ 19
U.S. Attorney’s Office for the Western
District of Tennessee, Federal
Agencies and Law Enforcement
Partners (July 1, 2021),
https://tinyurl.com/kwccdv28............................... 20
x
TABLES OF AUTHORITIES (continued)
Page(s)
U.S. Customs and Border Prot., CBP
Statement on the AMO Unmanned
Aircraft System in Minneapolis (May
29, 2020),
https://tinyurl.com/2p8hb3ku .............................. 20
U.S. Customs & Border Prot., Border
Patrol Overview (Aug. 24, 2021),
https://tinyurl.com/2762y9uj ............................... 21
U.S. Customs & Border Prot., CBP
Enforcement Statistics Fiscal Year
2022, https://tinyurl.com/5bnsrzew ............... 21, 23
U.S. Customs and Border Prot., Holding
the Line in the 21st Century (Nov. 25,
2014), https://tinyurl.com/28cpmn6n .................. 21
1
INTEREST OF AMICI CURIAE1
The DKT Liberty Project was founded in 1997 to
promote individual liberty against encroachment by
all levels of government. The not-for-profit Liberty
Project advocates vigilance over regulation of all
kinds, especially restrictions of individual civil liberties that threaten the reservation of power to the citizenry that underlies our constitutional system.
The Law Enforcement Action Partnership (LEAP)
is a nonprofit composed of police, prosecutors, judges,
corrections officials, and other criminal-justice professionals who seek to improve public safety, promote alternatives to arrest and incarceration, address the
root causes of crime, and heal police–community relations through sensible changes to our criminal-justice
system.
James Wong is a retired Customs and Border Protection officer who served more than thirty years in
state and federal law enforcement. When he retired,
he served as the Deputy Assistant Commissioner assigned to the Office of Internal Affairs. That Office
had responsibility for, among other things, internal
criminal and serious misconduct investigations.
Amici share a steadfast belief that the Fourth
Amendment’s prohibition against unreasonable
searches and seizures lies at the heart of American
freedom, and that the rigorous enforcement of this
1
Pursuant to Rule 37.6, counsel for amici curiae states that no
counsel for a party authored this brief in whole or in part and no
one other than the amici and their counsel made a monetary contribution to fund the preparation or submission of this brief. All
parties have consented in writing to the filing of this brief.
2
prohibition—including through actions brought under
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)—is imperative
to preserving our system of limited government.
INTRODUCTION AND
SUMMARY OF ARGUMENT
When this Court first authorized citizens to bring
damages actions against federal officers 50 years ago
in Bivens, it recognized that earlier judge-made rules
designed to constrain Fourth Amendment violations
(namely, the exclusionary rule) had proven woefully
inadequate to the task. In response, the Court built
upon a common law tradition predating the Founding
that authorized private parties to sue government officials who infringe their rights.
Four years ago, this Court reaffirmed “the continued force, or even the necessity, of Bivens in the
search-and-seizure context in which it arose.” Ziglar
v. Abbasi, 137 S. Ct. 1843, 1856 (2017). Bivens, the
Court explained, “vindicate[s] the Constitution by allowing some redress for injuries, and it provides instruction and guidance to federal law enforcement officers going forward.” Id. at 1856–57.
Amici agree. Bivens has proven a powerful tool for
policing the Fourth Amendment’s bounds on federal
power “in this common and recurrent sphere of law
enforcement.” Abbasi, 137 S. Ct. at 1857. Recent evidence shows that Bivens actions are much more likely
to be meritorious than previously thought (especially
compared to other forms of civil rights litigation),
while courts have proven more than capable of screening unmeritorious claims at little or no cost to federal
defendants or the judicial system. And the benefits of
3
Bivens actions redound not only to the individuals
whose Fourth Amendment rights are vindicated, but
to society at large. Bivens actions serve a wide array
of systemic interests, from exposing individual misconduct and institutional deficiencies in government
agencies to incentivizing policymakers to adopt reforms to prevent future abuses.
Drawing an unprincipled distinction from Bivens
in the search-and-seizure context for officers purportedly engaged in “immigration-related” functions
would be especially ill advised at the present time.
Public trust in law enforcement is at a historic low,
straining the relationship between officers and the
communities they serve and reducing citizens’ willingness to cooperate with law enforcement. Bivens is an
important tool for repairing this relationship, providing a vehicle through which accusations of federal
misconduct may be heard and redressed in an open
and neutral forum. Denying aggrieved individuals a
day in court and sweeping their allegations under the
rug will only exacerbate public distrust in law enforcement, to the detriment of public officials and the communities who depend on them alike.
There is no reason to believe that Bivens will unduly impede federal officers’ ability to do their jobs.
Even where Bivens is available, qualified immunity
shields federal officers from personal liability unless
they violate clearly established law, just as it does for
state officers in actions brought under 42 U.S.C.
§ 1983. In fact, abandoning Bivens will serve only to
provide federal officers with an additional layer of immunity not available to state officials, inverting the
original understanding of the Constitution as a check
primarily on federal power.
4
Bivens must apply to this case, which mirrors the
facts of Bivens itself: A federal law enforcement officer
entered a U.S. citizen’s private property within the
United States without a warrant, conducted an unauthorized search, and assaulted the citizen on his property. Petitioner urges this Court to hold that Bivens
does not apply merely because Petitioner exercised
“immigration-related” functions. But the carveout Petitioner urges this Court to adopt would prove entirely
unworkable, particularly in light of ever-increasing
exercise by the U.S. Customs and Border Protection of
general law enforcement authority.
This Court should affirm the Ninth Circuit and reaffirm the continuing importance of Bivens in our constitutional framework, particularly in cases, as here,
that arise in the precise context in which Bivens originated.
ARGUMENT
I.
BIVENS IS AN EFFECTIVE TOOL FOR PROTECTING
FOURTH AMENDMENT RIGHTS.
Fifty years into the Bivens era, the evidence is unequivocal: The private right of action for Fourth
Amendment violations authorized by that decision
has proven one of the most effective mechanisms for
policing and preventing government misconduct. Although this Court has been reluctant to extend Bivens
to entirely new contexts, Bivens remains a powerful
tool in the “common and recurrent sphere of law enforcement.” Abbasi, 137 S. Ct. at 1857. It should not
be unduly constrained by refusing to apply Bivens
within that sphere, as Petitioner urges this Court to
do.
5
Empirical analysis demonstrates that Bivens has
provided an important pathway for private citizens to
obtain redress for the violation of their right against
unreasonable searches and seizures by federal officials. A recent survey of five federal district courts
across the country found that 38.9 percent of counseled Bivens actions—and 9.5 percent of pro se Bivens
actions—resulted in a victory for plaintiffs. Alexander
A. Reinert, Measuring the Success of Bivens Litigation
and Its Consequences for the Individual Liability
Model, 62 STAN. L. REV. 809, 839 (2010). And notably,
Bivens actions alleging Fourth Amendment violations
(like the one here) were by far the most likely to succeed, with an overall success rate of 28.9 percent, compared to 15.3 percent for prison-condition claims and
11.8 percent for other claims. Id. at 836 n.138.
To be sure, courts do occasionally confront meritless Bivens actions, just as they occasionally confront
meritless actions of all types. But they have proven
adept at identifying and screening such actions when
they arise. For example, the same multidistrict survey
cited above found that “almost 20% of the Bivens
claims identified . . . were dismissed sua sponte because the district court screened them for frivolity and
determined that they should be dismissed out of
hand,” thereby avoiding the “burdens of Bivens litigation about which courts and commentators express
concern—no defendant is subject to intrusive discovery or the potential of liability, and no attorney even
has to review the complaint and prepare an answer or
motion to dismiss.” Reinert, 62 STAN. L. REV. at 840.
As one commentator has observed, these findings
“persuasively refute[]” the prior “assumption that
Bivens claims typically lack merit” and “threaten[] to
6
overwhelm the federal judiciary.” James E. Pfander,
Iqbal, Bivens, and the Role of Judge-Made Law in
Constitutional Litigation, 114 PENN ST. L. REV. 1387,
1407 (2010). Many plaintiffs who assert Fourth
Amendment claims under Bivens have in fact had
their constitutional rights infringed by federal officials, and those who have not are unlikely to advance
beyond the very earliest stages of litigation. Truncating Bivens, as Petitioner would have this Court do, will
leave those Americans who have suffered a violation
of their most fundamental rights in the “immigrationrelated” context without a remedy, while gaining next
to nothing in terms of easing federal dockets.
But Bivens actions are not limited to remedying
the violation of individual citizens’ rights. Rather, one
of the most important effects of such constitutional
tort litigation has been to incentivize government
agencies to adopt institutional reforms to ensure that
constitutional constraints are not violated in the first
place. It has done so through its “informational” and
“fault-fixing” functions. Myriam E. Gilles, In Defense
of Making Government Pay: The Deterrent Effect of
Constitutional Tort Remedies, 35 GA. L. REV. 845, 858–
65 (2001).
With respect to its informational function, Bivens
actions can bring to light individual and systemic
abuses that might otherwise go unnoticed by policymakers. “When constitutional tort victims pursue litigation, motivated by the availability of compensatory
damages, valuable information is unearthed and exposed.” Gilles, 35 GA. L. REV. at 859. This litigation
can encourage other victims of government misconduct to come forward, exposing patterns of abuse. And
the crucible of discovery can fix attention on problem
7
actors and institutional deficiencies within law enforcement agencies.
Studies confirm that constitutional tort litigation
has notified “officials of misconduct allegations that
did not surface through . . . other reporting systems,”
such as civilian complaints and use-of-force reports.
Joanna C. Schwartz, What Police Learn From Lawsuits, 33 CARDOZO L. REV. 841, 845 (2012) (noting that
“lawsuits have filled critical gaps in police department
internal reporting systems”). For example, the Los
Angeles Sheriff ’s Department’s periodic review of
suits brought against its officers revealed “clusters of
improper vehicle pursuits, illegal searches, and warrantless home entries” for which no civilian complaint
existed, and which “did not appear in officers’ use-offorce reports.” Id. Once the Department’s auditor
identified the trend, he was able to recommend policy
changes to prevent additional violations going forward. Id. at 854.
In fact, a growing number of law enforcement
agencies have begun to “mine lawsuits for data about
misconduct allegations and the details of those allegations.” Schwartz, 33 CARDOZO L. REV. at 846–47. The
results of these efforts have often surprised policymakers and driven targeted reforms. See, e.g., id. at
853–54 (Director of Los Angeles Sheriff ’s Department’s risk management bureau: “There’s times when
[we] think[] it’s a single incident” and “couldn’t see [a]
problem but by having it centralized in our operation
we were able to say ‘we’re seeing a pattern here, a
problem across all the units.’”). That sort of mining
helped Portland’s tort review board identify a spike in
excessive force claims involving blows to the head. Id.
8
at 854. After further review “revealed that the allegations were primarily made regarding officers on the
night shift at one Portland police station,” the board
implemented “retraining and closer supervision,” after which “allegations of head strikes in that station
declined.” Id.
Bivens actions can also provide critical information to the public. “Even when a civilian complaint
or use-of-force report is filed,” studies have shown that
“the litigation process can unearth details that did not
surface during the internal investigation.” Schwartz,
33 CARDOZO L. REV. at 845. For example, litigation revealed serious flaws in an internal investigation conducted after James Chasse died of blunt-force trauma
following a use-of-force incident involving two Portland police officers. Id. at 873. In particular, discovery
revealed that the police department’s internal affairs
personnel had failed to interview all of the officers on
the scene or the nurses who observed Chasse at the
jail shortly thereafter, “and did little to investigate allegations that officers had been laughing and joking
at the scene.” Id. (internal quotation marks omitted).
Most glaringly, the investigation made no attempt to
improve the audio quality of a critical recording made
the night of the incident in which the officers described and reenacted their confrontation with
Chasse. Id. During litigation, plaintiff ’s counsel improved the audio, “at which point it became clear that
the officer said he ‘tackled’ Chasse, contradicting his
[subsequent] statement to internal affairs.” Id.
With respect to its “fault-fixing” function, Bivens
actions can encourage policymakers to proactively
protect constitutional rights in two ways. First, “the
damages a plaintiff recovers contribute[] significantly
9
to the deterrence of civil rights violations in the future” by forcing government actors to internalize the
costs of misconduct. City of Riverside v. Rivera, 477
U.S. 561, 575 (1986). Federal agencies like CBP naturally wish “to minimize the amount of their budget
that is lost to paying damages,” and Bivens actions
“give[] [these agencies] a greater incentive to monitor,
supervise, and control the acts of their employees” to
ensure that they are hewing to constitutional strictures. Catherine Fisk & Erwin Chemerinsky, Civil
Rights Without Remedies: Vicarious Liability Under
Title VII, Section 1983, and Title IX, 7 WM. & MARY
BILL RTS. J. 755, 796 (1999); see also John C. Jeffries,
Jr., The Liability Rule For Constitutional Torts, 99 VA.
L. REV. 207, 240 (2013) (“[D]amages for constitutional
violations . . . heighten the disincentives for governments to engage in conduct that might result in constitutional violations.”).
Second, Bivens actions (and the information they
uncover) “can trigger bad publicity” that puts pressure
on policymakers to prevent constitutional violations.
Margo Schlanger, Inmate Litigation, 116 HARV. L. REV.
1555, 1681 (2003). Indeed, “even for an agency that
doesn’t care about payouts (perhaps because those
payouts come from some general fund rather than the
agency’s own budget), media coverage of abuses or administrative failures can trigger embarrassing political inquiry and even firings, resignations, or election
losses.” Id.; see also Joanna C. Schwartz, How Governments Pay: Lawsuits, Budgets, and Police Reform, 63
UCLA L. REV. 1144, 1151 (2016) (noting that Bivens
actions can put critical “nonfinancial pressures” on
policymakers “by generating publicity about allega-
10
tions of misconduct and by revealing previously unknown information about the details of that misconduct”).
The fault-fixing function played by constitutional
torts like Bivens has been on heightened display in recent years. Responding to nearly half-a-billion dollars
in payouts for police misconduct, the City of Chicago
has been “working to break that expensive pattern
and concentrating on implementing police reforms” by
“look[ing] at the deep seated issues within the department to start rooting out those problems.” Cheryl Corley, Police Settlements: How the Cost of Misconduct Impacts Cities and Taxpayers, NPR (Sept. 19, 2020),
https://tinyurl.com/2enbq5dl. And faced with increasing costs under municipal liability policies, “city insurers have demonstrated surprising success in ‘policing
the police,’ eliminating risky protocols, ousting police
chiefs and even closing problematic departments altogether.” Kit Ramgopal & Brenda Breslauer, The Hidden Hand That Uses Money to Reform Troubled Police
Departments, NBC NEWS (July 19, 2020), https://tinyurl.com/39scutxe; see also Rachel B. Doyle, How Insurance Companies Can Force Bad Cops Off the Job,
THE ATLANTIC (June 10, 2017), https://tinyurl.com/10b93ra7 (describing how “liability insurers can put a private-sector spin on reform, by demanding structural changes in the police departments
that they cover”); Martin Kaste, When It Comes to Police Reform, Insurance Companies May Play a Role,
NPR (Apr. 1, 2016), https://tinyurl.com/szz6qgri (reviewing how insurers have encouraged reforms in police departments, including by distributing pamphlets
on how to perform a strip search, meeting with police
11
chiefs following use-of-force incidents, and paying for
special training for police departments).
The individual and systemic benefits engendered
by Bivens have come at a surprisingly low cost. Bivens
cases make up an exceedingly small fraction of federal
courts’ dockets. “As a percentage of total civil filings
involving federal questions, Bivens suits filed between
2001 and 2003 ranged anywhere from 0.7% to 2.5% of
the work of ” surveyed district courts, “and 1.2% of the
total federal question filings.” Reinert, 62 STAN. L.
REV. at 835. Expanding the pool to include all civil
actions filed in federal court, Bivens actions comprise
less than 0.17 percent of cases. Id. at 837 (finding 243
Bivens filings out of 143,092 total civil filings in the
districts surveyed). And, as noted above, many of
these cases are quickly disposed of through preliminary screening.
Unlike “one size fits all” mechanisms for policing
government misconduct, Bivens leaves policymakers
free to adopt the reforms that they deem best suited
to the context in which they operate. See Richard H.
Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 HARV. L.
REV. 1731, 1788 (1991) (“[A] damages award does not
require discontinuation of such practices, [but] it exerts significant pressure on government and its officials to respect constitutional bounds.”). This not only
facilitates institutional buy-in within government
agencies, but also encourages experimentation and
adaptation.
Put simply, Bivens has proven to serve critical
functions in not only righting individual wrongs, but
incentivizing systemic reforms to the benefit of both
12
law enforcement and those they are tasked with protecting and serving. This Court should not deprive individual plaintiffs of a remedy or remove those incentives merely because a federal officer is purportedly
engaged in “immigration-related” functions.
II. BIVENS IS AN ESPECIALLY IMPORTANT TOOL AT
THIS MOMENT.
It is no secret that the relationship between law
enforcement agencies of all stripes and the communities they police has become strained in recent years.
Unchecked abuses, as well as high-profile incidents
involving the excessive use of force (especially against
members of marginalized communities), have caused
public trust in law enforcement generally—and CBP
officers in particular—to plummet. This distrust
harms not only law enforcement personnel, who find
it increasingly difficult to safely and effectively do
their jobs, but also the public, who depend on transparent and accountable law enforcement to keep their
communities safe. In this environment, it is more important than ever that individuals have a neutral forum in which their complaints involving official misconduct can be heard and redressed.
As to CBP officers specifically, recent data has revealed a troubling lack of accountability when it
comes to constitutional abuses. Compare No Action
Taken: Lack of CBP Accountability in Responding to
Complaints of Abuse 1, American Immigration Council (May 2014), https://tinyurl.com/2p9ycp28 (data
shows a “lack of accountability and transparency
which afflicts the U.S. Border Patrol and its parent
agency, U.S. Customs and Border Protection” for complaints including “physical, sexual, and verbal abuse,”
13
including that, “among those cases in which a formal
decision” on a complaint “was issued, 97 percent resulted in ‘No Action Taken’” (emphasis added)), with
Still No Action Taken: Complaints Against Border Patrol Agents Continue to Go Unanswered 1, American
Immigration Council (August 2017), https://tinyurl.com/yw6hc8u4 (allegations of excessive force
“occur with regularity, but they rarely result in any
serious disciplinary action”).
Unsurprisingly, these abuses have led to “a general lack of trust in the Border Patrol agency” among
Americans, “which includes: lack of trust that Border
Patrol officials will protect the rights and civil liberties of all people; lack of trust that Border Patrol officials will keep border residents safe; and lack of trust
that Border Patrol officials who abuse their authority
will be held accountable for their abuses.” Public
Opinion About the Border, at the Border 2–4, US Immigration Policy Center (Nov. 6, 2019), https://tinyurl.com/3hy2dtt7 (detailing results of scientific
polling of thousands of voters across four southwestern border states).
As to law enforcement more broadly, decades of
“[s]tudies have shown that police officers use force
against racial minorities at disproportionately high
rates, and there is reason to believe much of this force
is unjustified.” Elias R. Feldman, Strict Tort Liability
for Police Misconduct, 53 COLUM. J. L. & SOC. PROBS.
89, 90 & n.5, 98–106 (2019). Indeed, “[m]assive racial
disparities exist in rates of police traffic stops, stop
and frisks, citations, and narcotic search warrants.”
Brandon Hasbrouck, Abolishing Racist Policing With
the Thirteenth Amendment, 67 UCLA L. REV. 1108,
1115–16 (2020).
14
For example, police “[o]fficers are almost three
times more likely to search Black and Latinx drivers
than White drivers,” even while “data show[s] that officers are more likely to find weapons and contraband
on White people.” New Era of Public Safety: An Advocacy Toolkit for Fair, Safe, and Effective Community
Policing 14, 41, The Leadership Conference on Civil
and
Human
Rights
(2019),
https://tinyurl.com/4ja3baax (emphasis added).
Likewise,
“Black people are three times more likely to be killed
by officers than White people.” Id. at 14; see also id.
at 44 (noting that police are also “more likely to use
force, including lethal force, against Black, Latinx, Indigenous, and Asian people than against White people”). In fact, “between 2010 and 2012, Black men
aged 15–19 were 21 times more likely to be killed by
officers than their White male counterparts.” Id. at 14
(emphasis added). Moreover, Black people “are killed
by police at a rate nearly ten percentage points higher
than the rate at which they commit violent crimes”—
and they are killed “even more disproportionately
among victims who are unarmed, as well as among
victims killed during generally innocuous types of police interactions, such as traffic or pedestrian stops.”
Feldman, 53 COLUM. J. L. & SOC. PROBS. at 99–100 &
n.40.
These abuses have led to widespread distrust of
law enforcement. One poll conducted in 2020 found
that “only 19 percent of Black adults” reported that
“they were confident in the police.” Aimee Ortiz, Confidence in Police Is at Record Low, Gallup Survey
Finds, NY TIMES (Aug. 12, 2020), https://tinyurl.com/dh00vlnt. And while this distrust is most
pronounced among minorities, the downward trend in
15
2020 was consistent across demographics. In fact, by
the summer of 2020, “confidence in the police had
fallen . . . to 48 percent,” marking “the ‘first time in the
27-year trend that this reading [wa]s below the majority.’” Id. While trust in law enforcement rebounded
somewhat in 2021—to 51 percent—“the latest threepoint uptick is not statistically significant, the measure remains shy of its 2019 level[,]” and trust is well
below levels seen in the 1990s and 2000s. Megan
Brenan, Americans’ Confidence in Major U.S. Institutions Dips, GALLUP (July 14, 2021), https://tinyurl.com/27pxd8j9.
The low trust in law enforcement has profound
consequences for government officials and the public
alike. It is widely acknowledged that “community
trust in the police is an important contributor to effective crime control.” Jocelyn Fontaine et al., Mistrust
and Ambivalence Between Residents and the Police:
Evidence From Four Chicago Neighborhoods 1, URBAN
INSTITUTE (Aug. 2017), https://tinyurl.com/1xpfnii9;
see also New Era of Public Safety: A Guide to Fair,
Safe, and Effective Community Policing 10, The Leadership Conference on Civil and Human Rights (2019),
https://tinyurl.com/5dbqrewp (“[W]hen communities
and police departments trust each other and interact
positively, public safety improves because people are
more likely to cooperate with police to address problems.”). In particular, as the Department of Justice
has recognized, “[p]olice officials rely on the cooperation of community members to provide information
about crime in their neighborhoods, and to work with
the police to devise solutions to crime and disorder
16
problems.” Importance of Police-Community Relationships and Resources for Further Reading 1, Department of Justice, https://tinyurl.com/1rg21btx.
As community trust erodes, however, citizens become increasingly reluctant to cooperate with law enforcement. As one recent study found, “[c]rime victims’ perceptions that they will be treated unfairly or
not taken seriously by the police reduce the probability of them reporting offenses to law enforcement by
11 percent.” J. Gabriel Ware, Crime Victims Don’t Report if They Don’t Trust Cops: Study, THE CRIME REPORT (Dec. 13, 2018), https://tinyurl.com/yq3clz8m.
And a case study of crime reporting in the wake of a
particularly brutal beating of a Black man by police in
Milwaukee “found that after news of [the] beating
broke . . . there was a nearly 20% drop in 911 calls reporting crimes to the Milwaukee police, driven by a
much steeper decline in calls reporting violent crimes
from the city’s black community.” In Pursuit of Peace:
Building Police-Community Trust to Break the Cycle
of Violence 37, Giffords Law Center (Jan. 2020),
https://tinyurl.com/7yhf42y6. “In total, researchers
estimated that Milwaukee’s residents placed at least
22,000 fewer 911 calls reporting crimes to the police
in the year after they learned about the beating,” with
the “majority of these 22,000 ‘missing’ 911 calls . . .
from neighborhoods where at least 65% of the population was black.” Id.
Bivens is critical to preventing further erosion of
the public’s trust in American law enforcement institutions generally and in CBP specifically. The informational function such actions serve can help to cure
misperceptions about law enforcement misconduct by
providing a neutral, public forum in which allegations
17
of abuse can be heard and their merits decided. See
Public Trust and Law Enforcement—A Discussion for
Policymakers 8, Congressional Research Service (July
13, 2020), https://tinyurl.com/3rm3mfpy (“It may be
that the lack of reliable data on how often police use
force and who is the subject of the use of force fuels
the public’s mistrust of the police.”). And even when
those actions uncover gross abuses, Bivens will provide redress to victims, signal that wrongdoers will be
held to account, and encourage reforms. See Melissa
Mortazavi, Tort as Democracy: Lessons from the Food
Wars, 57 ARIZ. L. REV. 929, 975 (2015) (“Tort is an important procedural mechanism for deliberative democratic accountability and governmental legitimacy as
well as a catalyst for institutional reform.”). The role
that Bivens can play at this critical juncture cannot be
overstated. See New Era of Public Safety: A Guide to
Fair, Safe, and Effective Community Policing at 190
(noting that accountability “sends a message to communities that unjust and unconstitutional conduct is
not tolerated and will receive swift discipline[,] builds
public trust[,] and, in turn, strengthens the legitimacy
of police departments and the criminal justice system
at large”).
Neutering Bivens, on the other hand, will only
make matters worse. Denied their day in court, those
who feel aggrieved by government misconduct will increasingly take to the streets to make their voices
heard. And the law enforcement members who act
with integrity to protect the communities they serve
will be less able to distinguish themselves from bad
actors and thus find themselves under a growing
cloud of suspicion.
18
There is no discernible reason to invite such a response. For nearly half a century, Bivens has proven
not only workable, but effective in policing constitutional bounds on government conduct. Refusing to apply it now, in the “immigration-related” context, would
disserve the public, federal law enforcement, and the
settled law of the land.
III. BIVENS DOES NOT POSE AN UNDUE THREAT TO
FEDERAL LAW ENFORCEMENT.
This Court’s decisions refusing to extend Bivens
have expressed an understandable concern that the
risk of personal liability might hamper federal officers
in the discharge of their duties. See, e.g., Abbasi, 137
S. Ct. at 1861 (“The risk of personal damages liability
is more likely to cause an official to second-guess difficult but necessary decisions[.]”); Hernandez v. Mesa,
140 S. Ct. 735, 747 (2020) (“[T]he risk of undermining
border security provides reason to hesitate before extending Bivens into this field.”); cf. Br. of National ICE
Council as Amicus Curiae 12 (“[A]gents of the Border
Patrol and ICE will now undertake their daily duties
with the knowledge that one wrong action could lead
to years of financially ruinous litigation[.]”). But this
concern is overstated and pales in comparison to the
benefits Bivens provides.
There is no evidence to support the assumption
that the possibility of Bivens liability plays a role in
federal law enforcement officers’ day-to-day work.
This is unsurprising, as these officers tend to enjoy
broad indemnification from their federal employer. As
one recent study found, “of the 171 successful cases in
our dataset asserting Bivens claims, we found only
eight in which the individual officer or an insurer was
19
required to make a compensating payment to the
claimant.” James E. Pfander et al., The Myth of Personal Liability: Who Pays When Bivens Claims Succeed, 72 STAN. L. REV. 561, 566 (2020). Instead, “the
federal government effectively held its officers harmless in over 95% of the successful cases brought
against them, and paid well over 99% of the compensation received by plaintiffs in these cases.” Id.
And of course, there is no need to speculate as to
the effect a meaningful Bivens remedy would have on
federal law enforcement. A remedy far more robust
than Bivens already exists against state officers who
infringe citizens’ constitutional rights. See 42 U.S.C.
§ 1983. Far from preventing these officers from faithfully discharging their duties, this remedy has, if anything, proven too indulgent of state law enforcement,
with Section 1983 claimants “far[ing] poorly compared
to non-civil-rights plaintiffs.” Theodore Eisenberg,
Four Decades of Federal Civil Rights Litigation, 12 J.
EMPIRICAL LEGAL STUD. 4, 7 (2015) (“Pretrial judgment rates for [Section 1983] plaintiffs are lower than
in other classes of cases, pretrial dismissal rates are
higher than for other class[es] of cases and have plaintiff trial win rates of 30 percent or less, which is lower
than the rates for most classes of civil litigation.”).
Denying a cause of action against a federal officer
under Bivens where a cause of action would indisputably exist against a state officer “stand[s] the constitutional design on its head” by erecting “a system in
which the Bill of Rights monitors more closely the conduct of state officials than it does that of federal officials.” Butz v. Economou, 438 U.S. 478, 504 (1978). After all, “as every schoolboy knows, the Framers ‘designed’ the Bill of Rights not against ‘state power,’ but
20
against the power of the Federal Government.” Williams v. Florida, 399 U.S. 78, 145 (1970) (Stewart, J.,
concurring in part and dissenting in part). “That Congress decided, after the passage of the Fourteenth
Amendment, to enact legislation specifically requiring
state officials to respond in federal court for their failures to observe the constitutional limitations on their
powers is hardly a reason for excusing their federal
counterparts for the identical constitutional transgressions.” Butz, 438 U.S. at 504. This is all the more
true today, when federal and state law enforcement
partnerships are routine, blurring the distinction between federal and state officials. See, e.g., U.S. Attorney’s Office for the W. Dist. of Tenn., Federal Agencies
and Law Enforcement Partners (July 1, 2021),
https://tinyurl.com/kwccdv28 (listing 14 federal agencies and eight state and local law enforcement organizations with standing partnerships in the Western
District of Tennessee); see also U.S. Customs and Border Prot., CBP Statement on the AMO Unmanned Aircraft System in Minneapolis (May 29, 2020), https://tinyurl.com/2p8hb3ku (U.S. Customs and Border Protection “routinely conducts operations with other federal, state, and local law enforcement entities to assist
law enforcement”).
No interest is served by taking such an incongruous approach to the enforcement of constitutional
rights. This Court should take this opportunity to confirm parity in the protection of constitutional rights
from rogue government action, whether by federal or
state officers.
21
IV. THE “IMMIGRATION-RELATED” LINE PETITIONER
URGES IS A WHOLLY UNWORKABLE ONE.
This case maps neatly onto the facts of Bivens: Petitioner, a federal law enforcement officer, conducted a
warrantless search on an American citizen’s property.
Petitioner nonetheless claims that Bivens should not
apply because he, as a CBP officer, at times performs
“immigration-related” functions. Pet’r Br. I. The
wholesale exemption for officers performing “immigrated-related” functions that Petitioner urges is entirely unworkable, as the facts of this case and the
ever-expanding scope of CBP’s mandate make plain.
There can be no doubt that CBP officers perform
both “immigration-related” and general law enforcement functions. See, e.g., 8 U.S.C. § 1357(a)(5)(A)
(granting CBP officers the authority to make arrests
“for any offense against the United States . . . committed in the officer’s . . . presence”). Indeed, since its inception in 1924, the Border Patrol has morphed from
“a handful of mounted agents patrolling desolate areas along U.S. borders” into nearly 20,000 Border Patrol agents who, in CBP’s own words, wield “broad law
enforcement authorit[y].” U.S. Customs & Border
Prot., Border Patrol Overview (Aug. 24, 2021),
https://tinyurl.com/2762y9uj; U.S. Customs & Border
Prot., CBP Enforcement Statistics Fiscal Year 2022,
https://tinyurl.com/5bnsrzew. Gone are “[t]he days of
agents lying-in-wait for hours at a time,” acting as
“border guards who simply watch over an area.” U.S.
Customs and Border Prot., Holding the Line in the
21st Century 11, 26 (Nov. 25, 2014), https://tinyurl.com/28cpmn6n. In their place are “border police, responsible for the national sovereignty and the
22
detection and prevention of crime through an increased use of intelligence, planning, integration, and
prosecution.” Id. at 26.
CBP’s increased exercise of general police powers
has become all the more prominent in recent years.
Following the death of George Floyd in May 2020, CBP
used a drone to surveil protests in Minneapolis—more
than 250 miles from the closest border. Geneva Sands,
Customs and Border Protection Drone Flew over Minneapolis to Provide Live Video to Law Enforcement,
CNN (May 29, 2020), https://tinyurl.com/2p8mv8kn.
CBP suppressed protests in Washington, D.C., and
later deployed its Border Patrol Tactical Unit to police
protests in Oregon. Karl Jacoby, Op-Ed: The Border
Patrol’s Brute Power in Portland Is the Norm at the
Border, L.A. Times (July 22, 2020), https://tinyurl.com/y9p74sx3. Though these policing efforts
have come into the public light recently, they “reflect[]
the long history of unprecedented police powers
granted to federal border agents over what has become a far more expansive border zone than most
Americans realize.” Id.
It is therefore not the case that “all actions taken
by immigration officials in the course of their duties
. . . are necessarily intertwined with the execution of
immigration policy.” Lanuza v. Love, 899 F.3d 1019,
1029 (9th Cir. 2018) (permitting Bivens action to proceed against Department of Homeland Security attorney). The line Petitioner proposes—which would exempt all officers performing “immigration-related”
functions from Bivens suits—would prove entirely unworkable, especially in the face of CBP’s expanding
mandate. The facts of this case demonstrate as much:
23
Rather than exercising an “immigration-related” function, Petitioner entered the property of an American
citizen, who operates an inn on American soil, and
questioned him about a guest whom Petitioner knew
had lawfully entered the country. Where this Court
draws a new line, it should be a workable one, and the
line Petitioner urges is anything but.
In any event, this Court has never held that a
Bivens remedy is unavailable in “immigration-related” matters—wherever that line might fall. Petitioner treats any exercise of “immigration-related” enforcement functions as necessarily raising the sort of
national-security concerns the Court previously found
problematic in the Bivens context. Not so. A mere .3%
of all CBP encounters last year involved noncitizens
who had committed any crime; the noncitizens who
posed a security risk—while not reported—is sure to
be far less. U.S. Customs & Border Prot., CBP Enforcement Statistics Fiscal Year 2022, https://tinyurl.com/5bnsrzew. This Court has warned that “national-security concerns must not become a talisman
used to ward off inconvenient claims” or “a label used
to cover a multitude of sins.” Abbasi, 137 S. Ct. at 1862
(internal quotation marks omitted); cf. Hamdi v.
Rumsfeld, 542 U.S. 507, 536, 539 (2004) (plurality
opinion) (explaining that even “a state of war is not a
blank check for the President when it comes to the
rights of the Nation’s citizens” and that “the constitutional limitations safeguarding essential liberties . . .
remain vibrant even in times of security concerns”).
But that is precisely what Petitioner attempts here.
This Court should not allow it.
24
CONCLUSION
For the foregoing reasons, the judgment of the
Ninth Circuit should be affirmed.
Respectfully submitted.
JACOB T. SPENCER
LISA A. BENDER
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue N.W.
Washington, DC 20036
LAUREN M. KOLE
GIBSON, DUNN & CRUTCHER LLP
1801 California Street, Ste. 4200
Denver, CO 80202
THEANE EVANGELIS
Counsel of Record
JAMES TSOUVALAS
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
(213) 229-7726
tevangelis@gibsondunn.com
Counsel for Amici Curiae
January 26, 2022
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.