Coping With An Unenforceable Bill Of Rights: A Historical End-Run To The U.S. Supreme Court’s Nullification Of The Bill of Rights.

On June 8, 2022, the U.S. Supreme Court ruled that an innkeeper who got manhandled by a U.S. Border Patrol agent for refusing to act as a confidential informant could not sue the agent for First and Fourth Amendment violations. In doing so, it eliminated a 40-year-old rule that gave citizens the right to bring lawsuits for money damages against federal officers for Fourth Amendment violations and, implicitly, other constitutional violations. The practical result of the Supreme Court’s decision is that a federal law enforcement can maliciously beat the crap out of you as a form of retaliation, and you cannot sue that officer for violating your rights.

The case’s facts tell a story out of a television drama. The innkeeper, Robert Boule, operates a bed and breakfast called the Smuggler’s Inn literally on the Canadian border in Washington. After buying his property in 2000, Boule quickly realized that his property was a conduit for illegal bordering crossings both to and from Canada. He took advantage of the situation by becoming a paid, confidential informant for the Border Patrol and ICE, helping in the arrest of numerous individuals and profiting off not putting them up for a night as booked.

On March 20, 2014, Border Patrol Agent Erik Egbert stopped Boule twice while he was running errands to get information on his guests. Boule told him that he expected a guest from New York who had flown in from Turkey the night before. Egbert became suspicious and ultimately monitored when Boule’s guest arrived. He then entered Boule’s property to question the guest. Boule ordered him to leave, and Egbert twice threw him around. He then found out that the guest was legally in the United States.

Prior to June 8, 2022, the U.S. Supreme Court had left ajar a small door for citizens to sue federal officers for constitutional rights in a 1971 case called Bivens v. Six Unknown Fed. Narcotics Agents. Bivens acknowledged that neither Congress nor the Constitution provides a private right of action or a right to sue a federal officer for the violation of someone’s rights under the Bill of Rights. Bivens, however, recognized the ancient common law principle that, for every wrong, there must be a remedy. Thus, the Supreme Court ruled that a person could sue a federal officer for money for a constitutional rights violation unless Congress explicitly prohibited such a claim or extraordinary factors weighed against a person bringing the claim.

The Supreme Court walked backed Bivens in 2017 in Ziglar v. Abbasi. There, it confined Bivens‘ authorization of monetary damage suits to warrantless searches of the kind present in Bivens. Even then, it would not shut the door completely, ruling that Bivens‘s plaintiffs could possibly still succeed if they could show special factors as to why the Supreme Court should authorize a suit instead of Congress. It then proceeded to make that hurdle insurmountable.

Egbert largely ends the mystery by hanging its hat on a potential avalanche of new and harassing litigation that would prevent federal officers from pursuing their duties. This excuse virtually forecloses any likelihood that Bivens claims can succeed in the future.

As conventional wisdom now stands, it is impossible to sue federal officers for a constitutional rights violation. I would caution “not so fast.”

The Supreme Court’s main ground for repudiating Bivens was that the decision of authorizing private rights of actions really lies with Congress. In my view, Congress has already spoken through the All Writs Act (28 U.S.C. 1651).

Article III of the Constitution gives federal courts judicial power over all cases – in law (monetary damages) and equity (injunctive relief) – arising under the Constitution. Thus, there is no question that there is a substantive basis for a federal court to consider a claim of the violation of a constitutional right.

The All Writs Act comes into play because it allows courts to issue all writs (formal written orders) necessary or appropriate in aid of their jurisdictions. In other words, a federal court could assert jurisdiction over a claim through the use of a writ. Article I, Section 9, Clause 2 of the Constitution expressly contemplates this by expressly mentioning the writ of habeas corpus or a court order to produce a prisoner to determine the legality of his confinement.

The practice of pursuing writs has become a lost art for lawyers. Apart from writs of injunction, habeas corpus, certiorari, attachment, coram nobis, and mandamus, writs are rare in federal court. They, however, were the primary way to pursue a claim in federal court for the late 1700s and the entire 1800s.

Writs lost their influence in the 1900s as the law took a more substantive view of how authorization for lawsuits should be determined. In other words, courts began to look more at whether someone actually had a viable claim (e.g. assault and battery) rather than whether they met the formalities for pursuing a writ. Congress realized though that it still needed to give federal courts the authority to fulfill their constitutional role under Article III. Thus, it enacted the All Writs Act to enable federal courts to hear claims that courts had historically heard.

One of the most common writs prior to the 1900s was the writ of trespass on the case. Trespass on the case was a catch-all writ with roots in 13th century English common law. It initially required an injury accomplished by the force of arms. In 1369, this view formally shifted in the case of Waldon v. Mareschal, which recognized trespass on the case for negligence not involving the use of the force of arms. By the 1390s, English law had begun to use the writ for virtually every injury suffered personally by a person (e.g. negligence). The writ survived the American revolution as illustrated by the seminal case of Pierson v. Post involving a dispute over who had the right to a fox being hunted.

While I am not aware yet of federal courts using the writ of trespass on the case after the 1900s, there is no American case that specifically prohibits the use of the writ. Thus, litigants conceivably could attempt to force the Supreme Court and other federal courts to decide the place of writs in modern American law by using the writ of trespass on the case to bring monetary claims for damages against federal officers who violate their constitutional rights. No precedent prohibits such an experiment, and the history weighs strongly in favor of it according to my early readings of it.

The Supreme Court just made the Bill of Rights unenforceable against federal officials. Litigants should challenge the Supreme Court and other federal courts to completely foreclose it to them by resorting to the tried and true method of their ancestors: the writ of trespass on the case. They have nothing to lose.