Aimee Hernandez (Texas Tech University) has posted A Different “Border Crisis”: Civil Remedies for Unlawful Detainment After Egbert on SSRN. Here is the abstract:
In 1971, the Supreme Court decided Bivens v. Six Unknown Named Agents where the court created an implied cause of action for a private citizen to sue a federal official for a Fourth Amendment violation. This began to be known as a Bivens claim. Later cases created two more causes of action for a Fifth and Eighth Amendment violations in Davis v. Passman and Carlson v. Green. Beyond these three instances, the court has declined to extend the Bivens claim any further. Most recently, the Court's ruling in Egbert v. Boule essentially closed the door to Bivens, and with it, civil relief for constitutional violations by federal officials. In Egbert, the court held an individual did not have a Bivens claim against a Border Patrol agent for the violation of his First and Fourth amendment rights. In refusing to extend Bivens to the facts in Egbert, the Court pointed towards Congress to create a cause of action to remedy private citizens. In recent years, there has been an extensive influx of immigration, causing an increase in border security efforts. Congress and the Court have recognized several exceptions to constitutional rights at the border in the name of national security. Exceptions such as the 100-mile Border Exception have given Border Patrol increased latitude in policing at the border and nearby cities where an approximated two-thirds of the U.S. population lives. This latitude at times results in the infringement of constitutional rights of U.S. citizens. In 2019, an 18-year-old Dallas teenager, traveling through a Border Patrol checkpoint, was held in Border Patrol custody for nearly a month. This teen was a U.S. Citizen and had documentation to prove it, yet he was detained for weeks unable to make even a phone call. After Egbert, U.S. citizens who are unlawfully detained for extended periods of time, and who suffer from other unconstitutional conduct during their detainment, have little to no relief. Private citizens should have access to an adequate civil remedy that works to both compensate and deter further unlawful detentions. Along with providing relief, officers should be deterred from further conduct that infringes on the fundamental rights of U.S. Citizens. This Article proposes a statute that mimics a §1983 claim and sets out statutory language that is narrowly tailored to consider government interest while protecting individual rights.