Supreme Court Holds That Bivens Does Not Extend to Claims Based on Cross-Border Shootings
In November 2019, FEDagent reported on oral argument in Hernandez v. Mesa. This is the second time the case came before the Supreme Court. The Supreme Court has issued a decision on the case and found that Bivens does not extend to claims based on a cross-border shooting.
In 2010, U.S. Border Patrol Officer Jesus Mesa fired shot from American soil that killed 15-year old Mexican boy Sergio Hernandez on Mexican soil. The Department of Justice conducted an investigation, concluded that Mesa did not violate Customs and Border Protection policy or training, and declined to bring charges or take other action against him.
Hernandez’s family filed a Bivens suit against Mesa in district court in Texas and argued that Mesa was personally liable for violating Hernandez’s constitutional rights. Among other claims, they sought recovery of damages, alleging that Mesa violated Hernandez’s Fourth and Fifth Amendment rights. Mesa filed a motion to dismiss, and the district court granted it. The Court of Appeals for the Fifth Circuit sitting en banc has now twice affirmed this dismissal.
On the first occasion, the Fifth Circuit held that Hernandez was not entitled to Fourth Amendment protection because he was a Mexican citizen and was on Mexican soil when he was shot. After granting review, the Supreme Court vacated the Fifth Circuit’s decision and remanded the case, instructing it to address the Bivens question.
On remand, the Fifth Circuit evaluated the case in light of Ziglar v. Abbasi, which instructed lower courts how to evaluate Bivens availability, and refused to recognize a Bivens claim for a cross-border shooting. The Fifth Circuit stated that to do so, it would need to extend Bivens to a “new context” because it was not clear whether the Constitution applies to a foreign citizen on foreign soil. The family then petitioned the Supreme Court to decide the issue, and the Supreme Court granted certiorari.
In an opinion delivered by Justice Samuel Alito, the Court began its review of the case noting the “large volume of illegal cross-border traffic” and that 850,000 people were “apprehended attempting to enter the United States illegally from Mexico.” The Court also stated that “powerful criminal organizations operating on both sides of the border present a serious law enforcement problem.” For these reasons, the Court stated that the conduct of agents at the border has a “clear and strong connection to national security.”
Citing its decision in Abbasi, the Court said the question here is whether the Judiciary should alter the framework established by the political branches for addressing cases where alleged lethal force was unlawfully employed by an agent at the border. They Court stated that since regulating the conduct of agents at the border unquestionably has national security implications, the risk of undermining border security causes it to hesitate before extending Bivens.
The Court stated that it is “telling” that Congress has repeatedly declined to award damages for injury inflicted outside the borders of the United States. For example, the Court cited to 42 U.S.C. § 1983, which permits the recovery of damages for constitutional violations by officers acting under the color of state law. It stated that Bivens is a “more limited” “federal analog” to § 1983. The Court found it “instructive” that Congress chose to make § 1983 available only to United States citizens or others within the jurisdiction of the United States.
The Court also stated that Congress’s treatment of “ordinary tort claims” against federal officers is “revealing.” The Court referred to the Federal Tort Claims Act, and stated that it is “the exclusive remedy for most claims against Government employees arising out of their official conduct.” The FTCA however bars “[a]ny claim arising in a foreign country.” Thus, claims that would otherwise permit the recovery of damages under the FTCA are barred if the injury occurred abroad.
In another example, the Court stated that the Torture Victim Protection Act of 1991 allows for a damages action to be brought by or on behalf of a victim of torture or an extrajudicial killing carried out by a person acting under the authority of a foreign state. While this provision is employed to seek redress for acts committed abroad, it cannot be used to sue a United States officer.
The Court found this pattern of congressional action – refraining from authorizing damages actions for injury inflicted abroad by United States officers – gave it reason to hesitate about extending Bivens in this case. Citing Abbasi once again, the Court stated that “[i]n sum, this case features multiple factors that counsel hesitation about extending Bivens, but they can all be condensed to one concern – respect for the separation of powers.” The Court stated that when evaluating whether to extend Bivens, the most important question is “who should decide … Congress or the courts?” “The correct ‘answer most often will be Congress.’”
The Court therefore held that Bivens does not extend to claims based on a cross-border shooting, and affirmed the judgment of the Fifth Circuit.
Justice Clarence Thomas delivered a concurring opinion in which Justice Neil Gorsuch joined. Justice Ruth Bader Ginsburg delivered a dissenting opinion in which Justice Stephen Breyer, Justice Sonia Sotomayor, and Justice Elena Kagan joined.
Read the full case: Hernandez v. Mesa
This case law update was written by Michael J. Sgarlat, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.