Boule civil case goes to U.S. Supreme Court, could expand First Amendment rights

A civil case between Smuggler’s Inn owner Bob Boule and a U.S. Customs and Border Protection agent has made it to the U.S. Supreme Court.

Boule sued border patrol agent Erik Egbert for harassment after the agent suspected Boule of smuggling a Turkish immigrant through the U.S./Canada border. After Boule reported Egbert to his superiors following the incident, the agent reported Boule to the IRS and other government agencies.

The case could expand the court’s precedent to claims filed against border patrol agents under the Fourth and First amendments.

Smuggler’s Inn is only steps away from the U.S./Canada border and 0 Avenue. The bed and breakfast has allegedly been used for illegal border crossings and drug trafficking. According to the court petition, Egbert had previously gone to the inn to apprehend people illegally crossing the border, and repeatedly stopped at the inn on his patrols.

The petition also says Boule had served as a paid government informant whose information prompted multiple arrests of his guests but, more recently, been suspected of human trafficking. Boule has a case pending in Canada.

In March 2014, Egbert learned that a Turkish national was arriving at Smuggler’s Inn later that day and suspected the individual might cross into Canada illegally or meet with associates for a criminal purpose, according to the petition. Egbert waited for the man to arrive at the bed and breakfast to follow them up the driveway and park behind Boule.

The petition says Boule asked Egbert to leave the premises but he declined. Boule stepped in front of Egbert and the car with the Turkish national. Egbert allegedly pushed Boule aside, asked the Turkish national about his immigration status and confirmed his lawful presence.

According to the petition, Boule later sought medical treatment for a back injury that Egbert allegedly caused and complained to Egbert’s superiors. Boule alleges Egbert retaliated by contacting the IRS to report that Boule “had not properly accounted for income received” and contacted other government agencies to have Boule’s business investigated.

Under the Bivens precedent, an individual has a cause of action against federal law enforcement officers, in this case, for violating their freedom from unreasonable search and seizure. The court has yet to extend the precedent to the First Amendment and to border patrol agents. If the Supreme Court rules in favor of Boule on both claims, it would expand the breadth of the precedent’s applicability.

The district court denied Boule’s claims in 2018, refusing to extend the precedent to both freedoms. “As to Boule’s First Amendment claim, the district court noted that ‘the Supreme Court has never implied a Bivens action under any clause of the First Amendment,’ and that Boule’s claim ‘clearly presents a new context in Bivens,’” reads the Supreme Court petition. The court also refused to apply Bivens to border patrol agents as they are not “traditional” law enforcement officers.

The court of appeals reversed the district court’s decision. It applied Bivens to both the First Amendment and to border patrol agents, claiming it was a “modest extension.” Egbert then appealed, and the Supreme Court agreed November 5 to hear the case.

Greg Boos of Bellingham-based Cascadia Cross-Border Law said it was the idea of Boule’s original counsel, which included Scott Railton, Breean Beggs and Boos, to use Bivens.

While the Supreme Court has yet to set a date for the trial, Boos expected it to be heard in February 2022.

Felicia Ellsworth of Wilmer Cutler Pickering Hale and Dorr LLC in Washington, D.C., is lead counsel for Boule. Lisa Blatt of Williams & Connolly LLP is Egbert’s counsel.

Neither Egbert nor Blatt could be reached for comment in time of publication.

Boos said multiple immigration lawyers from across the country who have been to the Supreme Court offered to take the case for free.

“This case is such a high profile case that we have top-notch Supreme Court lawyers from across the country wanting to take this case for free,” he said, adding that it will accredit the agencies of attorneys involved. “This case will make national news.”

Boos said he will continue to remain as council and see the case in front of the Supreme Court. “It’s been interesting, what can I say.”