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Supreme Court decision limits excessive force lawsuits against Border Patrol agents


If a federal law enforcement officer performed what you felt was an unreasonable search or seizure, what recourse would you have? A Supreme Court decision this week appears to prevent you from suing that officer for damages. The case involves the owner of an inn near the Canadian border who said a U.S. Border Patrol agent used excessive force against him. The majority of the court ruled against the innkeeper. It was a 6-to-3 decision, and it stopped just short of overturning a 1971 Supreme Court decision that established the ability to sue a federal agent for damages.

We asked Howard Wasserman to help us understand this new case. He's a contributing writer to SCOTUSblog and a professor of law at Florida International University. Howard, thanks for coming on the program.

HOWARD WASSERMAN: Thank you for having me.

PFEIFFER: I think the details of this case are extremely interesting. In fact, one legal analyst described this innkeeper as a, quote, "somewhat shady figure." Would you, as briefly as possible, explain the details of this case to us?

WASSERMAN: Sure. And he is a character. So he runs an inn called the Smugglers Inn on the border of the United States and Canada in Washington state. And there's a lot of sort of shady activity of drug and human trafficking back and forth across the border in that town. And he also served as a paid government informant, including sometimes, according to the court, on the people who were staying in his inn.

PFEIFFER: So the innkeeper had a confrontation with a border control (ph) agent. He said that agent used excessive force. He sued. In the end, the court ruled 6 to 3 against the innkeeper, with all the conservative justices in the majority. Break down simply what the opinion says.

WASSERMAN: So the majority opinion narrowed but didn't eliminate the ability to sue a federal official for damages for a constitutional violation. What they did say was that considerations of national security and foreign affairs that are endemic to immigration enforcement and immigration issues are always going to make it improper for a damages action to go forward.

PFEIFFER: If not the court, who should be allowed to let the damages claim go forward?

WASSERMAN: It should be Congress. Congress can authorize a claim for damages. As they do for violations by state and local law enforcement or state and local government officials, Congress could do the same thing with respect to federal officials. And the fact that it hasn't means the court shouldn't be the one stepping in, at least where something like national security, immigration, foreign affairs are implicated.

PFEIFFER: Some legal analysts are calling this - and this is a quote - "a severe blow to the broader project of police accountability." Do you agree with that?

WASSERMAN: Oh, absolutely. Absolutely - because it severely limits one really good way of deterring law enforcement and governmental misconduct and establishing accountability, which is private suits for damages.

PFEIFFER: I think we need to establish the larger political context here, which is that this involves a Border Patrol agent. Immigration is an enormous political national issue right now, so it feels like this is deeply connected to current-day politics and could play out in so many ways.

WASSERMAN: Oh, absolutely. And the point of departure between the majority and the dissent was the majority said, if it's a Border Patrol officer, regardless of where he is, what he's doing, national security is always implicated with anything that Border Patrol does. The dissent's view was, yeah, he happens to work for the Border Patrol, but what he was doing is the same thing that any FBI agent was doing. He went onto somebody's property. He used excessive force, and the person he encountered was a U.S. citizen on U.S. property. And the majority is like, no, the Border Patrol, by its very nature, regardless of what it's doing and where, is just a different breed of law enforcement animal.

PFEIFFER: That's Howard Wasserman. He wrote about this case for SCOTUSblog, and he's a professor of law at Florida International University. Thank you.

WASSERMAN: Thank you for having me. Transcript provided by NPR, Copyright NPR.

Sacha Pfeiffer is a correspondent for NPR's Investigations team and an occasional guest host for some of NPR's national shows.
Michael Levitt
Michael Levitt is a news assistant for All Things Considered who is based in Atlanta, Georgia. He graduated from UCLA with a B.A. in Political Science. Before coming to NPR, Levitt worked in the solar energy industry and for the National Endowment for Democracy in Washington, D.C. He has also travelled extensively in the Middle East and speaks Arabic.