By Harman Dhanoa.
Standing on U.S. soil, Border Patrol Agent Jesus Mesa shot and killed Sergio Hernández, an unarmed 15-year-old Mexican boy on Mexican soil. Hernández’s parents sued Agent Mesa in the U.S. District Court for the Western District of Texas, alleging that a rogue federal officer’s unreasonable use of lethal force violated the Fourth and Fifth Amendments. This lawsuit was their one chance at a damages remedy: they had no alternative relief under Mexican law, state law, the Federal Tort Claims Act, the Alien Tort Statute, or federal criminal law. On February 25, 2020, in a 5-4 decision, the Supreme Court held that the parents could not sue Agent Mesa.
Hernandez v. Mesa
When a state officer commits a constitutional violation, plaintiffs may recover damages under 42 U.S.C. § 1983. The “federal analog” to Section 1983 (under which Hernández’s parents brought their claim) is found in case law: Bivens v. Six Unknown Fed. Narcotics Agents (1971). In Bivens, the Supreme Court held that federal officers who conducted a warrantless search and arrest in violation of the Fourth Amendment could be sued for damages even though no federal statute authorized the claim. The Court later extended Bivens to Fifth Amendment claims in Davis v. Passman (1979) and Eighth Amendment claims in Carlson v. Green (1980). Since these three cases, however, the Court has come to disfavor Bivens remedies. In Ziglar v. Abassi (2017), the Court declined to extend Bivens where plaintiff detainees alleged mistreatment following the 2001 terrorist attacks, citing concerns that Bivens should not be used to challenge high-level policies or disrupt broad national security decisions. The Court created a two-step inquiry for future invocations of Bivens that asks (1) whether the request involves a claim that arises in a new context or involves a new category of defendants and (2) whether there are any special factors that counsel hesitation about granting the extension.
In Hernandez v. Mesa, the Court concluded (1) a cross-border shooting is a “new context” and (2) multiple factors counsel hesitation about extending Bivens. The majority opinion focused on a concern for separation of powers, deferring to Congress to create the remedy instead. Justices Alito, Roberts, Gorsuch, Kavanaugh, and Thomas reasoned that allowing plaintiffs to bring this claim would impinge on foreign relations between the U.S. and Mexico and undermine border security efforts.
In dissent, Justices Ginsburg, Breyer, Sotomayor, and Kagan reasoned that rogue federal officer conduct does not fall in a “new” Bivens setting and no special factors counsel against a Bivens remedy. The Fifth Circuit has repeatedly called claims against individual officers for excessive force “classic Bivens claims.” Indeed, Mesa admitted that if the bullet had hit Hernández while he was on the U.S. side, Hernández’s parents could have maintained a Bivens action. Mesa fired his gun on U.S. soil—where his bullet landed should not change the analysis. Furthermore, no special factors counsel hesitation here: courts routinely resolve cross-border issues and no high-level policies are challenged in this action. Respect for border security efforts should not be a guise to ignore unjustified killings.
Bivens gives our Constitution teeth when a federal officer acts out of bounds. Alarmingly, in the concurring opinion, Justices Thomas and Gorsuch suggest that “the time has come to consider discarding the Bivens doctrine altogether.” The Court has made clear that the Constitution has no power over border patrol agents who fire their weapons into Mexico, and that surely raises legitimate concerns about the kinds of abuses that may soon be committed at the border without any sort of discipline or liability. But this case does not just reach Mexican nationals. Because of the Court’s decision in Hernandez v. Mesa, we have taken a chilling step towards becoming a nation where all federal officers are less accountable to the people.