Law Enforcement Accountability Elusive at High Court

The Supreme Court again chipped away at the ability of those alleging constitutional violations by federal law enforcement to sue, effectively immunizing Border Patrol agents from being hauled into court.

Athul Acharya, of the public interest law firm Public Accountability, says the June 8 ruling in Egbert v. Boule is one of several judge-made barriers to suing government officials.

There are many stages “in the gauntlet that civil rights plaintiffs have to run before they can have their claim heard on the merits,” Acharya said, noting there are jurisdictional and other technical barriers, questions about who can be sued, and then immunity doctrines.

The latest ruling limiting so-called Bivens claims, isn’t a surprise. The fortified conservative-majority court has questioned the authority of judges to permit suits against federal officials in instances where Congress hasn’t.

In “all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts,” Justice Clarence Thomas wrote in the 6-3 Boule ruling that split the court along ideological lines.

Acharya explains that another barrier to suits against law enforcement—qualified immunity—is subject to the same criticism.

The doctrine, which often shields officers from being sued for all but the most obvious constitutional violations, has come under fire recently by groups on the right and the left.

But qualified immunity is still considered by courts to be “good law,” despite being a judge-made rule.

It’s an open question “why atextual doctrines like qualified immunity are OK” with the justices, while Bivens claims aren’t, Acharya said.

Cases dealing with qualified immunity are constantly pending before the justices. Cope v. Cogdill, alleging that jail officials failed to prevent a detainee’s suicide, has been considered at their private conferences 10 times. But the justices haven’t seemed eager to address the doctrine in that case or any other.

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