Boule v. Egbert et al., Nos. 2:17-cv-00106-RSM (W.D. Wash., filed Jan. 25, 2017) and 18-35789 (9th Cir., filed Sept. 20, 2018)
A U.S. citizen filed a Bivens action for damages he suffered when a U.S. Border Patrol agent unlawfully entered his property in violation of the Fourth Amendment, refused to leave when told to do so, and knocked him to the ground. The district court granted the agent’s motion for summary judgment and dismissed the plaintiff’s Fourth Amendment claim. Although the court found that the agent had violated the Fourth Amendment, it nevertheless held that the case presents a new context for Bivens and that special factors existed which counseled against extending Bivens. In particular, the court found that the case implicated national security issues because the plaintiff’s property—where the incident occurred—is located right on the United States side of the U.S.-Canada border. The court indicated that the risk of personal liability would cause Border Patrol agents to hesitate and second guess their daily decisions about whether and how to investigate suspicious activity near the border.
The plaintiff appealed to the Ninth Circuit. Northwest Immigrant Rights Project and the American Immigration Council filed an amicus in support of the appeal. In August 2019, the Ninth Circuit stayed proceedings in this case pending issuance of the Supreme Court’s decision in Hernandez v. Mesa. Following the Supreme Court’s February 25, 2020, decision in Hernandez, the Ninth Circuit lifted the stay and heard oral arguments.
On November 20, 2020, the Ninth Circuit issued an opinion reversing the district court’s summary judgment for defendants and holding that Bivens remedies were available in the circumstances of this case.
On May 20, 2021, the Ninth Circuit denied a sua sponte request from an active judge on the Ninth Circuit for rehearing en banc. The Ninth Circuit simultaneously amended its opinion to include additional analysis to support the original holding that Bivens remedies are available in the circumstances of this case, including a more thorough discussion of the lack of alternative remedies.
- District Court Order
- Plaintiff’s Opening Brief
- Amicus Brief of American Immigration Council and Northwest Immigrant Rights Project
- Boule v. Egbert Opinion
- Order and Amended Opinion
Counsel: Breean L. Beggs, Paukert and Troppmann; Gregory Boos and W. Scott Railton, Cascadia Cross-Border Law
Contact: Gregory Boos | Cascadia Cross-Border Law | 360.671.5945 | firstname.lastname@example.org