A Supreme Court ruling this week drew attention to U.S. Customs and Border Protection operations conducted within 100 miles of the U.S. border, an area that includes all of Maine and has been the subject of legal action here.
The High Court’s decision in a case brought by a Washington state bed and breakfast owner came down to the question of when individuals can sue law enforcement. The decision has no practical effect on the authority of Border Patrol.
But the American Civil Liberties Union of Maine warns that the ruling could make it even harder for other people to bring a case to court if their constitutional rights are violated. In Maine, over the past five years, Border Patrol domestic operations have been most visible during searches at bus stations and along highway checkpoints.
The circumstances of the recent Supreme Court case were unique. The plaintiff was a bed and breakfast owner who also worked as a confidential informant for the federal government. After being pushed to the ground by a Border Patrol agent who had sought to search his property because a Turkish citizen was staying there, he sued, arguing that the agent had violated his First and Fourth Amendment rights.
In a 6-3 decision, the High Court ruled the man could not sue. Judge Clarence Thomas wrote in a majority opinion that the national security interest of border security distinguished the situation from a typical Fourth Amendment case.
The question highlighted a unique authority of Border Patrol compared to other law enforcement agencies. Although the agency is best known for its staffing stations right on the border, a 1953 regulation gives it broad powers to operate within 100 miles of any U.S. coast or foreign border, which includes all of Maine.
In practice, the Border Patrol’s power to operate inland does not mean that most Mainers are at risk of having a Border Patrol agent break into their home or business. In previous cases, the Supreme Court has upheld that Border Patrol can stop vehicles at checkpoints and ask about immigration status, but the Fourth Amendment still protects against more invasive searches without probable cause.
In Maine, the Border Patrol sometimes set up checkpoints on I-95 and questioned bus passengers about their citizenship. The ACLU of Maine challenged this practice. Shortly before the onset of the COVID-19 pandemic in 2020, major bus companies said they would no longer allow officers to search their buses without a warrant.
It’s hard to know in real time the extent to which Border Patrol conducts such research, said Zachary Heiden, legal counsel for the ACLU of Maine, since the group relies on news reports or testimonials from passengers. He said unnecessary search reports often increase in the summer when more people take the bus.
The recent decision of the Supreme Court should not have an effect on this type of searches. But Heiden said the decision was concerning because rather than questioning the merits of whether or not the Border Patrol breached the bed-and-breakfast owner’s constitutional rights, the High Court determined that it did not. could not try to seek redress in a civil lawsuit.
“If you can’t go to court to enforce your rights, it’s hard to say those rights still exist,” Heiden said.