Can the Parents of a Mexican Youth Who Was Shot and Killed by a Border Patrol Agent Sue the Officer for Damages in Federal Court?
Can the Parents of a Mexican Youth Who Was Shot and Killed by a Border Patrol Agent Sue the Officer for Damages in Federal Court?
On June 7, 2010, Sergio Adrian Hernandez Guereca, a 15-year-old Mexican national, was playing a game with friends in the concrete culvert that separates El Paso, Texas, and Ciudad Juarez, Mexico. The boys ran up the U.S. side of the culvert, touched the fence, and then ran back. Border Patrol Agent Jesus Mesa Jr. arrived on the scene and detained one of Hernandez’s friends. Hernandez ran to the Mexican side and stood by a pillar supporting a railroad bridge that runs over the culvert. Mesa, still in United States territory, fired at least two shots across the border at Hernandez. One shot struck Hernandez in the face and killed him. Hernandez was unarmed and unthreatening at the time. His parents sued the officer for violations of his Fourth and Fifth Amendment rights.
Docket No. 17-1678
Argument Date: November 12, 2019
From: The Fifth Circuit
by Steven D. Schwinn
University of Illinois Chicago John Marshall Law School, Chicago, IL
Under Bivens v. Six Unknown Named Agents of the FBI, 403 U.S. 388 (1971), injured plaintiffs can bring claims for damages against U.S. officers for violating their constitutional rights. But the Court in recent decades has sharply limited the Bivens remedy. Today, plaintiffs can bring Bivens claims when they fall within the “context” of a previously recognized Bivens claim, or, if they don’t, when the case doesn’t raise “special factors” that counsel against extending a Bivens remedy.
Can the parents of a Mexican youth, shot by a U.S. Border Patrol agent in the culvert dividing the United States and Mexico, sue the agent for damages in federal court?
On June 7, 2010, Sergio Adrian Hernandez Guereca, a 15-year-old Mexican national, was playing with friends in the concrete culvert that separates El Paso, Texas, and Ciudad Juarez, Mexico. Although the Rio Grande River once ran through the culvert, it is nearly dry today. Hernandez and his friends were playing a game in which they ran up the embankment on the United States side, touched the fence, and ran back down.
Border Patrol Agent Jesus Mesa Jr. arrived on the scene by bicycle and detained one of Hernandez’s friends on the United States side of the culvert. Hernandez ran back to the Mexican side and stood by a pillar supporting a railroad bridge that runs over the culvert. Mesa, still in United States territory, fired at least two shots across the border at Hernandez. One shot struck Hernandez in the face and killed him. Hernandez was unarmed and unthreatening at the time.
Mesa later claimed that the boys were throwing rocks at him. Video of the event seems to undermine that claim. (Video is available here: https://www.youtube.com/ watch?v=oa2LjgL40KE&feature=youtu.be.)
Hernandez’s parents sued various defendants, arguing that they violated Hernandez’s Fourth and Fifth Amendment rights. The district court dismissed the case. A panel of the United States Court of Appeals for the Fifth Circuit affirmed as to the Fourth Amendment claim, but reversed as to the Fifth Amendment claim. On rehearing en banc, the Fifth Circuit unanimously affirmed the district court’s dismissal. The court ruled that the plaintiffs failed to state a claim under the Fourth Amendment and that Mesa was entitled to qualified immunity on the Fifth Amendment claim. The Supreme Court reversed the Fifth Circuit on the qualified immunity conclusion and remanded the case to determine whether the shooting violated Hernandez’s Fourth Amendment rights and, in light of its decision in Ziglar v. Abassi, 137 S. Ct. 1843 (2017), whether the plaintiffs could assert a claim for damages against Mesa in federal court. Hernandez v. Mesa, 137 S. Ct. 2003 (2017).
On remand, the Fifth Circuit again affirmed the district court’s dismissal. This time, however, the court held, in light of Abassi, that the plaintiffs could not sue in federal court for violations of Hernandez’s Fourth- and Fifth Amendment rights. This appeal followed.
Under Bivens v. Six Unknown Named Agents of the FBI, injured plaintiffs can bring claims for damages against U.S. officers for violating their constitutional rights, even without a statutory cause of action. Bivens thus created an implied cause of action to compensate persons injured by federal officers who violated the Fourth Amendment’s prohibition on unreasonable searches and seizures.
In subsequent years, the Court recognized a Bivens remedy in two other cases. In the first, Davis v. Passman, 442 U.S. 228 (1979), the Court recognized an implied cause of action when a congressional aid sued a Congressman for firing her because she was a woman, in violation of her Fifth Amendment equal protection rights. In the second, Carlson v. Green, 446 U.S. 14 (1980), the Court recognized an implied cause of action when a prisoner’s estate sued federal jailers for failing to provide adequate medical treatment, in violation of the Eighth Amendment Cruel and Unusual Punishments Clause. Thus, the Court has recognized three Bivens “contexts”—Bivens itself, Davis, and Carlson.
But in recent decades, the Court has sharply limited the Bivens remedy. Today, a plaintiff can bring a Bivens claim when it falls within the “context” of a previously recognized Bivens claim or, if it doesn’t, when the case doesn’t raise “special factors” that counsel against extending a Bivens remedy. The Court has time and again rejected Bivens claims, concluding that cases raise new Bivens contexts and that special factors counsel against a Bivens remedy.
Most recently, in Abassi, the Court declined to “extend” a Bivens remedy to individuals detained in the wake of the September 11 attacks. The detainees alleged that their jailers mistreated them and that other, higher-level executive officials authorized the mistreatment, in violation of their Fourth and Fifth Amendment rights. The Court ruled that the case raised a new Bivens context and that special factors counseled against a Bivens remedy.
Abassi severely curtailed Bivens. But it left open at least a theoretical possibility that the Court might recognize new Bivens claims in the future. This case tests just how much room Abassi leaves for potential new Bivens claims. (The government filed an amicus brief in support of Mesa. The review of the arguments below combines the arguments of Mesa and those of the government, specifying which party made each particular argument.)
Hernandez’s parents argue first that their claim does not raise a new Bivens context. They point to their complaint, which alleges “that a rogue federal law enforcement officer, acting in violation of federal regulations, used excessive force in violation of the Fourth and Fifth Amendments, in a context in which he did not (and could not) know whether the victim [was a U.S. national and therefore] had clearly established constitutional rights.” In this way, the plaintiffs say that their claims “resemble the specific facts of Bivens” and more generally “resemble common law trespass, the archetypal example of a pre-Bivens state-law tort claim against a rogue federal officer.” The plaintiffs maintain that Abassi doesn’t change this: unlike the claims in Abassi, their claims do not challenge a “senior government official for high-level policy decisions made in the aftermath of the September 11 attacks” under different constitutional provisions than those in the Court’s Bivens cases.
The plaintiffs argue next that even if the case raises a new context, special factors do not counsel against a Bivens remedy here. They say that their case does not raise national security issues or implicate foreign policy or diplomacy. They contend that there is no reason to think that the U.S. Constitution does not apply, because the case “touch[es] and concern[s] the territory of the United States.” They maintain that Congress’s failure to provide a statutory remedy cannot be a special factor counseling against a Bivens remedy. And they point out that they are not challenging government policies or alleging misconduct by high-level government officials. Instead, the plaintiffs say that they are merely “pursuing a conventional excessive force claim against a rogue federal law enforcement officer.” Moreover, the plaintiffs argue that they have no other remedy: they contend that the federal Westfall Act preempts all state tort suits against federal officers acting within the scope of their employment. (The Westfall Act provides that, upon certification by the Attorney General that a federal officer was acting within the scope of employment, the United States shall be substituted for a defendant-officer in any civil case against a federal officer and that a state tort claim against an officer, substituting the United States, shall be removed to federal court. 28 U.S.C. § 2679.) “[F]or Petitioners here (unlike in Bivens), it is Bivens or nothing.”
Finally, the plaintiffs argue that denying a Bivens remedy here would depart from the historical tradition of providing tort remedies against rogue federal officers and would frustrate Bivens’s “core deterrent purpose” against officer misconduct. They contend that this would also call into question the Westfall Act, which eliminates the only other remedy available to them (a state tort suit) and fails to provide any alternative.
Mesa counters that the case presents a new Bivens context. He says that the Fifth Circuit got it right when it ruled that “the shooting of a foreign national on foreign soil by a U.S. government law enforcement agent while standing on United States soil, is a new context.” Mesa and the government contend that this is far afield from the “warrantless domestic invasion of a citizen’s home in Bivens.”
The government argues next that special factors counsel against a Bivens remedy. It says that because the injury occurred in another country’s sovereign territory, the lawsuit would “interfere with the political branches’ constitutional powers over foreign affairs.” Moreover, it claims that Congress’s failure to provide for a statutory remedy counsels against extending a Bivens remedy. And it contends that the claim of extraterritorial application of a constitutional remedy counsels against a Bivens remedy. The government maintains that it is irrelevant that the plaintiffs lack an adequate remedy for the harm; but, in any event, they may in fact have one, a state tort claim, because the officer acted outside the scope of his employment. According to the government, if they don’t (because it would be preempted by the Westfall Act), that only means that Congress did not intend to extend a remedy—which itself counsels against extending a Bivens remedy.
This case tests what, if anything, is left of Bivens in the wake of Abassi, and whether the Court will in fact recognize any Bivens claims that fall outside the three previously recognized contexts. While Abassi left open a possibility that the Court might recognize new Bivens claims, many commentators and judges understood the case to leave Bivens hanging by a thread. Since Abassi came down, the lower courts, reading this handwriting on the wall, have routinely rejected new Bivens claims. (Some lower courts have recognized new Bivens claims, however, distinguishing the cases from Abassi.)
This is a problem, because Bivens provides the only damage remedy for victims of constitutional violations by federal officials in many situations. While victims have a statutory cause of action for constitutional violations by state officials, 42 U.S.C. § 1983, Congress has never enacted a companion statute for victims of constitutional violations by federal officers. For many, including the plaintiffs here, it’s Bivens or nothing.
This case presents a challenging test. By the plaintiffs’ reckoning, the case falls within familiar Bivens contexts and, in any event, does not raise special factors counseling against a Bivens remedy, because the plaintiffs simply seek compensation against a rogue agent for shooting their son in violation of federal law. But by the government’s reckoning, the case presents a new Bivens context, and special factors counsel against a Bivens remedy, because it involves an international incident and the extraterritorial application of the Constitution in favor of a foreign national.
It may seem unsettling that a case that tests such an important issue could turn on how different justices understand and characterize the exact same facts. But that’s likely how the Court will rule. If a majority understands this as a case involving a rogue agent who shot a person in violation of federal law, look for the Court to recognize a Bivens remedy. But if a majority understands the case as implicating significant issues of international or foreign affairs, higher-level policy, or significant questions about the extraterritorial application of constitutional rights, look for it to reject a Bivens remedy.
One final note. The existence of a Bivens remedy by no means guarantees these plaintiffs, or any other victims in other Bivens cases, an actual remedy. That’s because defendants in Bivens cases have other important defenses, like qualified immunity, that are designed to protect them from liability. It’s also because the existence of a Bivens remedy is merely a threshold issue; the plaintiffs still have to prove their case in court.
Steven D. Schwinn is a professor of law at the University of Illinois Chicago John Marshall Law School and coeditor of the Constitutional Law Prof Blog. He specializes in constitutional law and human rights. He can be reached at firstname.lastname@example.org or 312.386.2865.
PREVIEW of United States Supreme Court Cases 47, no. 2 (November 4, 2019): 32–34. © 2019 American Bar Association
In Support of Petitioner Jesus C. Hernández
In Support of Respondent Jesus Mesa Jr.
In Support of Neither Party