Boule v. Egbert et al

Filing 154

ORDER denying Plaintiff's 94 Motion for Summary Judgment on Plaintiff's Fourth Amendment Claim; granting Defendant Egbert's Motion for Summary Judgment on Plaintiff's Fourth Amendment Claim and dismissing the claim against Defendant Egbert in it's entirety. The remainder of Defendant Egbert's motion for summary judgment (Dkt. # 102 ) remains noted on the Court's calendar and will be resolved by separate Order. Signed by Judge Ricardo S. Martinez. (PM)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ROBERT BOULE,
Plaintiff,

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v.
ERIK EGBERT, et al.,

Case No. C17-0106RSM
ORDER DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT
REGARDING FOURTH AMENDMENT
VIOLATION

Defendants.

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I. INTRODUCTION

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This matter comes before the Court on Plaintiff’s Motion for Summary Judgment On
Plaintiff’s Fourth Amendment Claim. Dkt. #94. Plaintiff argues that there is no genuine dispute

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as to any material fact regarding liability, and therefore judgment in his favor is appropriate with
respect to his claim. Id. Defendant Egbert asserts that summary judgment in his favor is
appropriate because Plaintiff impermissibly attempts to extend his Bivens1 claims to a new

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context, he was invited onto the subject property, he was given permission to conduct the search
at issue, and he is protected by qualified immunity in any event. Dkts. #1022 and #131 (filed

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Referring to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).

Although not styled as a cross-motion for summary judgment, Defendant Egbert has
moved for summary judgment on all claims. The Court resolves the Fourth Amendment
portion of Defendant Egbert’s motion in this Order, and the remainder of his motion (Dkt.
#102) will be resolved by separate Order.
ORDER– 1

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under seal).3 For the reasons set forth below, the Court disagrees with Plaintiff and DENIES his
motion.

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II. BACKGROUND

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Plaintiff initially filed this action on January 5, 2017.

Dkt. #1.

He filed an

Amended Complaint on September 6, 2017. Dkt. #22. The allegations arise from an

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interaction with Defendant Erik Egbert, a United States Customs and Border Protection
(“CBP”) Officer, on March 20, 2014. Id.

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Plaintiff resides in a house immediately adjacent to the U.S./Canada border. Dkt.
#99 at ¶ 4 (filed under seal)4. The house and its driveway are accessed by a one-lane
private dirt road that connects to a paved public street. Id. at ¶ 5. Plaintiff and Defendant
appear to agree that this property is in area known for cross-border smuggling of people,

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drugs, illicit money and items of significance to criminal organizations. Id. at ¶ 7 and Dkt.
#108 at ¶ 10. In addition to living in the home, Plaintiff operates a bed and breakfast,
which is known as the Smuggler’s Inn. Dkts. #99 at ¶ 4 and #108 at ¶ 6.

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Plaintiff has posted a sign at the intersection of the private dirt lane that leads to his

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home and the paved public street that reads:

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Welcome to Smuggler’s Inn
Guests Only
Private Property
No Trespassing

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A number of documents in this matter have been filed under seal, with redacted versions
available publicly. To the extent possible, the Court will reference only information
available in the public documents. For any citations to the sealed documents, the same
information is located at the same reference in the public version of the document.
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While the Declaration of Robert Boule cited here was filed under seal, the information set
forth in this factual background was contained on the public docket in Plaintiff’s motion for
summary judgment (Dkt. #99).
ORDER– 2

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Dkt. #99 at ¶ 16 and Ex. 5 thereto. There is conflicting evidence in the record as to when
that sign was posted. Defendant Egbert asserts that the sign was not posted as of March 20,

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2014. Dkts. #130 at ¶ 23 and #133 at ¶ 23 (filed under seal). A friend of Plaintiff’s states
that the sign has been posted for the last six or seven years. Dkt. #148 at ¶ 11.
On March 20, 2014, Defendant Egbert drove down the dirt lane into Plaintiff’s

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driveway. Dkts. #108 at ¶ 29 and #130 at ¶ 24. A photo of Plaintiff’s property depicts the
drive way immediately adjacent to Plaintiff’s home, surrounded on to sides by a tall
wooden fence. Dkts. #98, Ex. 4 and #108, Ex. A. Earlier that day, Defendant Egbert had

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learned through conversation with Plaintiff of a guest arriving from Turkey who had
booked a room at Smuggler’s Inn for that evening. Dkt. #130 at ¶ 30. Plaintiff informed
Agent Egbert that the guest had arrived in New York via air from Turkey the night before,

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and had then flown to SEA-TAC airport that day. Dkts. #94 at 4-5 and #99 at ¶ 10. Two
persons employed by Plaintiff had driven to SEA-TAC airport in one of Plaintiff’s vehicles
to pick up the guest and transport him to Smugglers Inn. Dkt. #99 at ¶ 10. As the vehicle

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returned, driving down the lane and coming to a stop in the Plaintiff’s driveway, Defendant
Egbert followed in his Border Patrol vehicle, entering Plaintiff’s driveway and parking
immediately behind the vehicle. Dkts. #108 at ¶ 29 and #130 at ¶ 24.

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The driver exited while the guest remained seated in the vehicle. According to
Defendant Egbert, when he approached the vehicle, the driver gave him permission to talk
to the guest, Mr. Kaya. Dkts. #108 at ¶ 32 and #130 at ¶ 24. However, Plaintiff, who was

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on a nearby porch, told Defendant Egbert he was trespassing and asked him to leave his
property. Dkts. #99 at ¶ 10 and #108 at ¶ ¶ 33-34. Defendant Egbert was “puzzled” by the
behavior. Dkt. #108 at ¶ 35.
ORDER– 3

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What happened next is not largely in dispute. The parties agree that Agent Egbert
did not leave when asked to do so by Plaintiff. Dkt. #108 at ¶ ¶ 33-34. The parties also

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agree that Plaintiff moved between Defendant and the vehicle in which the passenger was
seated. Id. Defendant Egbert states that he informed Plaintiff he (Egbert) wanted to speak
with the guest about his immigration status. Id. at ¶ 34. The parties dispute what level of

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force, if any, was used for Agent Egbert to access the vehicle, but the parties agree that
Agent Egbert opened the vehicle door and asked the guest about his status in the country.
Id. at ¶ ¶ 37-38. The parties agree that Defendant Egbert confirmed that the guest was

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legally in the country and then allowed Plaintiff to escort the guest into his home. Id. at ¶ ¶
40-41. The instant action followed.

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III. DISCUSSION

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A. Legal Standard on Summary Judgment
Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

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Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In ruling
on summary judgment, a court does not weigh evidence to determine the truth of the matter,
but “only determine[s] whether there is a genuine issue for trial.” Crane v. Conoco, Inc., 41

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F.3d 547, 549 (9th Cir. 1994) (citing Federal Deposit Ins. Corp. v. O’Melveny & Meyers,
969 F.2d 744, 747 (9th Cir. 1992)). Material facts are those which might affect the
outcome of the suit under governing law. Anderson, 477 U.S. at 248.

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The Court must draw all reasonable inferences in favor of the non-moving party.
See O’Melveny & Meyers, 969 F.2d at 747, rev’d on other grounds, 512 U.S. 79 (1994).
However, the nonmoving party must make a “sufficient showing on an essential element of
ORDER– 4

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her case with respect to which she has the burden of proof” to survive summary judgment.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Further, “[t]he mere existence of a

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scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be
evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at
251.

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B. Plaintiff’s Fourth Amendment Claim
Plaintiff asks this Court to find as a matter of law that Agent Egbert violated
Plaintiff’s Fourth Amendment Rights when he (Egbert) drove onto Plaintiff’s curtilage and

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refused to leave when asked to do so by Plaintiff. Dkt. #94 at 8-10. Defendant Egbert
responds that summary judgment in his favor is appropriate because: 1) allowing his claim
to proceed would be an unwarranted extension of Bivens into a new context; 2) he was

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authorized by federal law to enter onto Plaintiff’s property, and the driveway in front of
Smuggler’s Inn is not an area where Plaintiff had a reasonable expectation of privacy for
purposes of the Fourth Amendment; 3) Plaintiff does not have standing to assert a claim

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relating to the alleged detention or search of another person; and 4) he is entitled to
qualified immunity. Dkt. #128. For the reasons discussed below, the Court agrees that
allowing Plaintiff’s claim to proceed would be an unwarranted extension of Bivens into a

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new context.
1. Curtilage
As an initial matter, the Court examines whether the driveway outside Plaintiff’s
home/inn is protected curtilage. The Fourth Amendment’s protection of curtilage has long
been black letter law. “[W]hen it comes to the Fourth Amendment, the home is first among
equals.” Florida v. Jardines, 569 U. S. 1, 6, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (2013).
ORDER– 5

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“At the Amendment’s ‘very core’ stands ‘the right of a man to retreat into his own home
and there be free from unreasonable governmental intrusion.’” Ibid. (quoting Silverman v.

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United States, 365 U.S. 505, 511, 81 S. Ct. 679, 5 L. Ed. 2d 734 (1961)). To give full
practical effect to that right, the U.S. Supreme Court considers curtilage – “the area
‘immediately surrounding and associated with the home’” – to be “‘part of the home itself

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for Fourth Amendment purposes.’” Jardines, 569 U. S. at 6 (quoting Oliver v. United
States, 466 U.S. 170, 180, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984)). “The protection
afforded the curtilage is essentially a protection of families and personal privacy in an area

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intimately linked to the home, both physically and psychologically, where privacy
expectations are most heightened.” California v. Ciraolo, 476 U.S. 207, 212-213, 106 S.
Ct. 1809, 90 L. Ed. 2d 210 (1986). When a law enforcement officer physically intrudes on

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the curtilage to gather evidence, a search within the meaning of the Fourth Amendment has
occurred. Jardines, 569 U. S. at 11. Such conduct thus is presumptively unreasonable
absent a warrant.

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Defining the extent of the “curtilage,” depends on four factors: “the proximity of the

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area claimed to be curtilage to the home, whether the area is included within an enclosure
surrounding the home, the nature of the uses to which the area is put, and the steps taken by

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the resident to protect the area from observation by people passing by.” Id. at 301. The
Supreme Court has noted that, “for most homes, the boundaries of the curtilage will be
clearly marked: and the conception defining the curtilage – as the area around the home to

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which the activity of home life extends – is a familiar one easily understood from our daily
experience.” Oliver v. U.S., 466 U.S. 170, 182 n.12, 104 S. Ct. 1735, 80 L. Ed. 2d 214
(1984).
ORDER– 6

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In this case, the Court agrees with Plaintiff that the driveway in front of his
house/inn is curtilage. According to photographs in the record, the driveway runs in a u-

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shape, off of 99th St. SW, in front of the house/inn and alongside part of the front lawn past
the front perimeter of the house.

Dkt. #98, Exs. 3 and 4.

The top portion of the

driveway that sits behind the front perimeter of the house is enclosed on two sides by a

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white, wooden fence that appears to be the height of a car.

Id., Ex. 4.

A visitor

endeavoring to reach the front door of the house/inn would have to enter the driveway and
park, before proceeding up a set of steps leading to the front porch. Id. When Defendant

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Egbert followed the vehicle and encountered the person sitting inside, it was parked in the
driveway near the front steps to the house/inn.
The “‘conception defining the curtilage’ is . . . familiar enough that it is ‘easily

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understood from our daily experience.’” Jardines, 569 U.S. at 7 (quoting Oliver, 466 U.S.
at 182, fn. 12). Just like the front porch, side garden, or area “outside the front window,”
Jardines, 569 U.S. at 6, the driveway enclosure where Defendant Egbert stopped the

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vehicle and confronted the guest inside constitutes “an area adjacent to the home and ‘to
which the activity of home life extends,’” and so is properly considered curtilage. Id. at 7
(quoting Oliver, 466 U.S. at 182, fn. 12). In physically intruding on the curtilage of

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Plaintiff’s home/inn to stop and search the vehicle, Defendant Egbert not only invaded
Plaintiff’s Fourth Amendment interest in the item searched, i.e., the vehicle, but also
invaded Plaintiff’s Fourth Amendment interest in the curtilage of his home/inn. Thus, the

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question now before this Court is whether there is an exception that justifies the invasion of
the curtilage.

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ORDER– 7

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2. Bivens
Defendant Egbert first argues that this lawsuit is not recognized in the Bivens

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context, and therefore should be dismissed.

Dkt. #102 at 10-14 (filed under seal).

Specifically, Defendant argues that Plaintiff’s claims present a new Bivens context because
the Supreme Court has not previously recognized an action against Border Patrol agents

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conducting immigration checks, an action arising out of the use of force to overcome a
bystander’s attempt to impede an investigation, or an action for alleged retaliation, and
therefore the claims are nothing like the Bivens actions the Supreme Court has previously

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approved. Id.
In 1971 the United States Supreme Court decided Bivens. In that case, the Court
held that, even absent statutory authorization, it would enforce a damages remedy to

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compensate persons injured by federal officers who violated the prohibition against
unreasonable search and seizures. Bivens, 403 U.S. at 397. The Court acknowledged that
the Fourth Amendment does not provide for money damages “in so many words.” Id. at

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396. However, the Court noted that Congress had not foreclosed a damages remedy in
“explicit” terms and that no “special factors” suggested that the Judiciary should
“hesitat[e]” in the face of congressional silence. Id. at 396-97. The Court held that it could
authorize a remedy under general principles of federal jurisdiction. See id. at 392 (citing
Bell v. Hood, 327 U.S. 678, 684, 66 S. Ct. 773, 90 L. Ed. 939 (1946)).
Since then, the U.S. Supreme Court has made clear that expanding the Bivens
remedy is now a “disfavored” judicial activity, in recognition that it has “consistently
refused to extend Bivens to any new context or new category of defendants.” Correctional
Services Corp. v. Malesko, 534 U. S. 61, 68, 122 S. Ct. 515, 151 L. Ed. 2d 456 (2001). The
ORDER– 8

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Court has recently set forth the proper test for determining whether a case presents a new
Bivens context. Ziglar v. Abbasi, __ U.S. __, 137 S. Ct. 1843, 1859-60, 198 L. Ed.2d 290

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(2017).
If the case is different in a meaningful way from previous Bivens cases
decided by this Court, then the context is new. Without endeavoring to
create an exhaustive list of differences that are meaningful enough to
make a given context a new one, some examples might prove
instructive. A case might differ in a meaningful way because of the
rank of the officers involved; the constitutional right at issue; the
generality or specificity of the official action; the extent of judicial
guidance as to how an officer should respond to the problem or
emergency to be confronted; the statutory or other legal mandate under
which the officer was operating; the risk of disruptive intrusion by the
Judiciary into the functioning of other branches; or the presence of
potential special factors that previous Bivens cases did not consider.

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Id. In determining whether a Bivens remedy should be recognized in that case, the Court in
Abbassi compared the respondents’ claims to already recognized Bivens claims and noted
that a new context arises in cases where “even a modest extension” exists. Id. at 1864.

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In the instant matter, the alleged conduct has the recognizable substance of Fourth
Amendment violations. Nevertheless, Defendant Egbert is a U.S. Border Patrol Agent,
rather than a traditional law enforcement officer, federal workplace supervisor, or prison

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official, and was purporting to operate under a different “statutory or other legal mandate”
than the officials outlined in the “traditional” Bivens claims referenced in Abbasi. For these
reasons, the Court assumes that this case presents a “modest extension” in a “new context”

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for the application of a Bivens remedy and must determine whether there are special factors
counseling against extension of Bivens into this area. Ziglar, 137 S.Ct. at 1857. The
Supreme Court’s precedents “now make clear that a Bivens remedy will not be available if

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there are ‘special factors counselling hesitation in the absence of affirmative action by

ORDER– 9

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Congress.’” Id. Thus, “the inquiry must concentrate on whether the Judiciary is well
suited, absent congressional action or instruction, to consider and weigh the costs and

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benefits of allowing a damages action to proceed.” Id. at 1857-58. This requires the Court
to assess the impact on governmental operations system-wide, including the burdens on
government employees who are sued personally, as well as the projected costs and

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consequences to the government itself. Id. at 1858. In addition, “if there is an alternative
remedial structure present in a certain case, that alone may limit the power of the Judiciary
to infer a new Bivens cause of action.” Id.

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Even assuming that Plaintiff had no other remedy than a Bivens claim for the
alleged Fourth Amendment violation, this Court cannot extend Bivens if a “special factor”
counsels hesitation. See Wilkie v. Robbins, 551 U.S. 537, 554, 562, 127 S. Ct. 2588, 168 L.

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Ed. 2d 389 (2007). Thus, the Court must carefully weigh all the reasons Defendant Egbert
has offered for denying a Bivens cause of action. Here, for the reasons set forth by
Defendant, the Court agrees that Plaintiff’s claims raise significant separation-of-powers

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concerns by implicating the other branches’ national-security policies. See Dkt. #143 at 45. “The Supreme Court has never implied a Bivens remedy in a case involving the military,
national security, or intelligence.” Hernandez, 885 F.3d at 818–19. This Court agrees that

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the risk of personal liability would cause Border Patrol agents to hesitate and second guess
their daily decisions about whether and how to investigate suspicious activities near the
border, paralyzing their important border-security mission. See Abbasi, 137 S. Ct. at 1861.

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Likewise, the Court agrees that Congress is in the best position to evaluate the costs and
benefits of a new legal remedy, particularly when it has already granted Border Patrol broad
authority to secure the international border without providing a damages remedy for claims
ORDER– 10

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arising in that context. See Abbasi, 137 S. Ct. at 1857–58 and 1862. For all of these
reasons, the Court finds that Plaintiff attempts an impermissible Bivens claim in a new

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context, and special factors preclude such a claim. The Court therefore declines to address
Defendant’s alternative arguments regarding Defendant’s authorization under federal law,
standing or qualified immunity.

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IV. CONCLUSION

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Having reviewed Plaintiff’s and Defendant’s motions for summary judgment, the
oppositions thereto and replies in support thereof, along with the supporting Declarations and

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Exhibits and the remainder of the record, the Court hereby finds and ORDERS:
1. Plaintiff’s Motion for Summary Judgment on Plaintiff’s Fourth Amendment Claim
(Dkt. #94) is DENIED.

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2. Defendant Egbert’s Motion for Summary Judgment on Plaintiff’s Fourth
Amendment Claim is GRANTED and the claim will be dismissed against Defendant
Egbert in its entirety.

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3. The remainder of Defendant Egbert’s motion for summary judgment (Dkt. #102)
remains noted on the Court’s calendar and will be resolved by separate Order.
DATED this 21 day of August, 2018.

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A

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RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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ORDER– 11