The U.S. Supreme Court’s recent decision in Hernandez v. Mesa raises significant questions about the future of civil-rights remedies against federal officials.
Nearly half a century ago, the Court held in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics that plaintiffs could seek civil damages against federal officers for the violation of their Fourth Amendment rights. Within the next decade, the Court subsequently extended a Bivens remedy to the violations of Fifth and Eighth Amendment rights.
More recently, however, the Court has expressed its reluctance to further extend Bivens remedies. In 2017, the Court concluded in Zigler v. Abbasi that Bivens and its progeny were decided at a time “when the prevailing law assumed that a proper judicial function” was to create remedies to enforce statutes. The current Court, however, “has since adopted a far more cautious course,” choosing instead to defer to legislative drafters. In Abbasi, the Court reconciled those positions by continuing to recognize that “Bivens is well settled law in its own context,” but that “expanding the Bivens remedy is now considered a ‘disfavored’ judicial activity.” Thus, the Court held that Bivens remedies would not be allowed either in a “new context” or where there are other factors “counselling hesitation.”
No Bivens Remedy for Cross-Border Shooting
The Court had the opportunity to apply that standard in Hernandez v. Mesa. The case arose on the Texas-Mexico border, where a 15-year-old boy was playing with his friends, “running up the embankment on the United States side, touching the barbed-wire fence, and running back down to the Mexican side.” A border-patrol agent stopped one of the boys on the U.S. side, and the other ran back to the Mexican side. The agent then fired his weapon across the border, killing the boy in Mexico. His parents brought a Bivens claim against the officer.
In a 5-4 opinion authored by Justice Alito, the Court affirmed the dismissal of the family’s claim. The Court concluded that the cross-border context of the action was a “new context,” and that additional factors counselled hesitation—including the potential effect on foreign relations, the risk of undermining border security, and the fact that Congress has “repeatedly declined” to create remedies for harm occurring outside the United States.
Justice Ginsburg authored the dissenting opinion. The dissent disputed that the cross-border nature of the claim was a “new context”; instead, the case dealt with a Fourth Amendment violation very similar to that found in Bivens itself. Even though the officer’s bullet hit a child on the Mexican side of the border, the officer’s own action took place in the United States—and, Justice Ginsburg pointed out, the Supreme Court had acknowledged in Abbasi that, “the purpose of Bivens is to deter the officer.”