For Cross-Border Shooting Cases, It’s Bivens or Nothing

By Benjamin Shattuck.

The Fifth and Ninth Circuits are currently split as to whether victims of cross-border shootings can bring damages claims against the U.S. Border Patrol agents who shot them. In Hernandez v. Mesa, the Fifth Circuit held that the victim did not have a claim under the Fifth Amendment. Conversely, in Rodriguez v. Swartz, the Ninth Circuit held that the victim did have a claim under the Fourth Amendment. The Supreme Court granted certiorari in Hernandez and heard arguments on November 12, 2019. This blog post argues that the Supreme Court would be wise to overrule the Fifth Circuit and hold that victims of cross-border shootings can bring damages claims, in the form of Bivens claims, against the Border Patrol agents who shot them.

Both cases turn on the issue of whether the victims’ families have a cause of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, known as a Bivens claim. In Bivens, the Court implied a cause of action for damages directly under the Fourth Amendment after federal agents searched the plaintiff’s home without a warrant. Subsequent to Bivens, the Supreme Court extended its holding only twice, holding in separate cases that the Fifth and Eighth Amendments also imply causes of action for damages. Thereafter, the Court declined to extend Bivens in nine successive cases. Underpinning the Court’s retrenchment of Bivens was the view that Bivens represented judicial lawmaking and usurped Congress’s exclusive authority to create federal causes of action, and thus was unconstitutional.

Despite the Court’s persistent refusal to extend Bivens, most recently in 2017 in Ziglar v. Abbasi, the Court acknowledged that Bivens was still good law. Nonetheless, the Court characterized expanding Bivens as “disfavored judicial activity.” The Court instructed that Bivens applies only to cases that are identical to previous Bivens cases, or cases in which the claimant has no alternative remedy and there are no “special factors counseling hesitation.” Given the Court’s extensive, and nonexhaustive, list of potential factors counseling hesitation, this is an exceedingly high bar for claimants to overcome.

Regrettably, the Court’s restrictive treatment of Bivens fails to account for the Westfall Act of 1988, which significantly altered the legal landscape for tort claims against federal officials. Before the Westfall Act, stretching all the way back to the common law tradition at the Founding, the typical way for plaintiffs to vindicate constitutional violations by federal officials was to bring state law tort claims. Though an indirect remedy for say, a Fourth Amendment violation of unlawful search and seizure, a common law tort claim for battery would still ensure recourse for the use of excessive force in facilitating an arrest.

However, the Westfall Act requires that all state tort claims against federal officials acting within the scope of their employment be brought under the Federal Tort Claims Act (FTCA). Some have argued that the Westfall Act preempts all state tort claims against federal officials. Undoubtedly, the Act severely limits state tort claims as a mechanism for holding federal officials accountable. Such claims must be brought against the federal government, rather than the official directly, and the government has certain defenses available that preempt claims outright. For example, in the context of cross-border shootings, the FTCA contains a foreign soil exception, which bars tort claims arising in foreign countries, even if the tortious conduct inflicting the injury occurred in the United States.

For the victims’ families in Hernandez and Rodriguez, the Westfall Act’s abrogation of state tort claims has left them with one possibility for recourse: the Bivens claim. Unfortunately, the Court’s current jurisprudence casts significant doubt on whether it will extend Bivens to the cross-border shooting context. In light of the limits the Westfall Act places on state tort claims, the Supreme Court needs to reevaluate its unfavorable treatment of Bivens. While state common law once offered a robust damages regime for holding federal officials accountable for unconstitutional conduct, after the passage of the Westfall Act, it no longer does. The Bivens claim is the most logical means to fill this void. Continuing to restrict the use of Bivens claims in all but the narrowest of circumstances raises genuine concerns about ensuring that federal officials are held accountable and individuals are able to vindicate their most basic legal rights.