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The feds must protect, not violate, rights


We live in a nation of laws, the primary source of which is our Constitution, which, unlike the highest laws in so many other countries, protects us fundamentally from having federal authorities violate our constitutional rights under the color of authority.

Law-enforcement agents, whether local, state or federal, are not themselves above the law when seeking to enforce the laws of any of those jurisdictions.

But a recent United States Supreme Court decision, in Egbert v. Boule, runs contrary to that key truth. A court majority said that if federal agents violate your rights — “even intentionally” doing so, as lawyers Anya Bidwell and Patrick Jaicomo of the Institute for Justice wrote in USA Today — “there is absolutely nothing you can do about it unless and until Congress gives you a permission slip to enforce the Constitution.”

This is wrong, and it is dangerous, not just to the plaintiffs in this particular case, but to all Americans as we try to live our lives in a country in which — again, unlike so many others — the feds or any other police authority simply have no right to demand “Papers, please,” of anyone walking any streets in our nation. We are a free people, and if the cops of any sort want to randomly jack you up on a hunch, we get to say, “No, thanks — not unless you come back with a warrant, signed by a judge.”

The lawsuit in question involves Border Patrol Agent Erik Egbert, who allegedly lifted up hotel manager Robert Boule and threw him against a vehicle while he tried to check the immigration status of guests in Boule’s hotel. After that, Boule allegedly was subject to audits in his business by various state and federal agencies who wanted to punish Boule for filing a complaint against the Border Patrol agent for … registering a complaint about his treatment.

Wouldn’t you complain if your First Amendment and Fourth Amendment rights as an American were so violated by federal police agents?

So Boule went to court, and the case was eventually kicked up to the highest court in the land, which a couple of weeks ago ruled that Boule was wrong to complain, that he had no cause to do so, because, in the words of Supreme Court Justice Clarence Thomas, who wrote the decision, courts are never “competent to authorize a damages action” against Border Patrol agents — and, in effect, against any federal agent.

Justice Neil Gorsuch wrote his own concurring opinion in the Boule case, claiming that there is some automatic federal immunity for government employees.

This dangerous notion, which Thomas and Gorsuch claim is true for complex technical reasons, goes against hundreds of years of court rulings that often ordered damages against federal officials who violated American citizens’ rights, and the judges in those cases never ruled that citizens had to run to Congress to get a special law passed in order to prevent their individual rights from being violated.

Horrifically, if this ruling is allowed to stand, if a federal official violates your rights — throws you up against an SUV in a parking lot, say, or sics other agencies against your business in search of petty violations of some regulation or another in order to harass you — you can no longer look to our court system for vindication.

Specifically, since at least a 1971 ruling in a case called Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, federal officials can still be individually sued for violating Americans’ rights while ostensibly in pursuit of their duties.

The court needs to go back to its historical precedence of believing, and ruling, “that every right, when withheld, must have a remedy, and every injury its proper redress.”

Otherwise, we go back to being just another nation that believes people in uniform are always right and that the rest of us can therefore be wronged by them without punishment.



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