CA9: Bivens could be extended to excessive force and 1A retaliation claim against CBP officer

Bivens could be extended to a Fourth Amendment illegal entry and excessive force claim and First Amendment retaliation by the CBP agent by reporting plaintiff to the IRS. Boule v. Egbert, 2020 U.S. App. LEXIS 36559 (9th Cir. Nov. 20, 2020)*(summary by the court):

The panel reversed the district court’s summary judgment for defendants in an action brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), by a United States citizen who alleged that a border patrol agent, acting on plaintiff’s property within the United States, violated plaintiff’s rights under the First and Fourth Amendments.

Plaintiff owns, operates and lives in a bed and breakfast in the state of Washington, on land which touches the United States-Canada border. Plaintiff alleged that a border patrol agent entered the front driveway of plaintiff’s property to question arriving guests, used excessive force against plaintiff, and then, in response to plaintiff’s complaints, retaliated against plaintiff by, among other things, contacting the Internal Revenue Service, asking the agency to look into plaintiff’s tax status. The district court granted summary judgment to defendants on plaintiff’s First and Fourth Amendment claims, holding that they were impermissible extensions of Bivens.

The panel held that Bivens remedies were available in the circumstances of this case, where a United States citizen alleged that a border patrol agent violated the Fourth Amendment by using excessive force while carrying out official duties within the United States, and violated the First Amendment by engaging in retaliation entirely unconnected to his official duties.

Addressing the Fourth Amendment claim, the panel agreed that it was a modest extension in a new context. However, no special factors counseled hesitation in allowing the Bivens action to proceed. The panel held that plaintiff, a United States citizen, brought a conventional Fourth Amendment claim based on actions by a rank-and-file border patrol agent on plaintiff’s property in the United States. This context was a far cry from the contexts in Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017), and Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020), in which the Supreme Court found special factors.

Addressing the First Amendment claim, the panel noted that the Supreme Court had not recognized a Bivens claim in the First Amendment context and therefore the panel concluded that plaintiff’s First Amendment claim arose in a new context. However, no special factors counseled hesitation in extending a Bivens remedy under the circumstances. The panel noted that retaliation was a well-established First Amendment claim, available against governmental officers in general, and defendant’s alleged retaliation had no relation to, or justification based on, his duties as a border patrol agent. The panel further noted that it appeared that there were no alternative remedies available to plaintiff for either claim.

This is going en banc or up or both.

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