Hernandez v. Mesa
206 L. Ed. 2d 29, 140 S. Ct. 735 (2020)
Rule of Law:
An implied cause of action for damages under Bivens v. Six Unknown Fed. Narcotics Agents will not be extended to a new context, such as a cross-border shooting, when special factors like foreign relations and national security counsel hesitation, making Congress the proper branch to authorize such a remedy.
Facts:
- Sergio Adrián Hernández Güereca, a 15-year-old Mexican national, was with friends in a concrete culvert that separates El Paso, Texas, from Ciudad Juarez, Mexico.
- The international border runs through the center of the culvert.
- U.S. Border Patrol Agent Jesus Mesa, Jr. was on the U.S. side of the border when he detained one of Hernández's friends.
- Hernández, who was on the U.S. side, ran back across the border onto Mexican soil.
- While standing on U.S. soil, Agent Mesa fired two shots across the border at Hernández.
- One shot struck and killed Hernández, who was on Mexican soil.
- The parties dispute the events leading to the shooting: Hernández's family claims the boys were playing a game, while Agent Mesa asserts they were part of an illegal border crossing attempt and were pelting him with rocks.
- The shooting became an international incident, with Mexico requesting Agent Mesa's extradition for criminal charges, which the United States denied.
Procedural Posture:
- Sergio Hernández's parents sued Agent Jesus Mesa, Jr., in the U.S. District Court for the Western District of Texas for damages.
- The District Court granted Mesa's motion to dismiss the claims.
- The plaintiffs (appellants) appealed to the U.S. Court of Appeals for the Fifth Circuit, where an en banc panel affirmed the dismissal.
- The U.S. Supreme Court granted certiorari, vacated the Fifth Circuit's judgment, and remanded the case for reconsideration in light of its recent decision in Ziglar v. Abbasi.
- On remand, the en banc Fifth Circuit again affirmed the district court's dismissal, holding that Bivens should not be extended to this context.
- The U.S. Supreme Court granted certiorari for a second time to resolve the Bivens issue.
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Issue:
Does an implied cause of action for damages under Bivens v. Six Unknown Fed. Narcotics Agents extend to a cross-border shooting by a U.S. Border Patrol agent that results in the death of a Mexican national in Mexico?
Opinions:
Majority - Justice Alito
No. A Bivens remedy does not extend to a cross-border shooting because it represents a new context where special factors counsel judicial hesitation. The Court applies a two-step inquiry from Ziglar v. Abbasi. First, a cross-border shooting is a 'new context' for a Bivens claim because it is meaningfully different from the domestic search and seizure in Bivens; it is an international incident with significant foreign policy implications. Second, several 'special factors' counsel hesitation and weigh against creating a judicial remedy. These include the potential disruption to foreign relations, as the incident involves the sovereign interests of both the U.S. and Mexico and is best handled through diplomacy. The case also implicates national security, as it involves the conduct of federal agents policing the border. Finally, Congress has consistently chosen not to authorize damages claims for injuries occurring abroad, as seen in statutes like the Federal Tort Claims Act and § 1983. The central reason for hesitation is the separation of powers; creating a damages remedy in this sensitive area is a decision for Congress, not the courts.
Concurring - Justice Thomas
No. While I join the majority's opinion in full, Bivens and its progeny were wrongly decided and the entire doctrine should be discarded. Bivens was a product of an era when the Court improperly created implied causes of action, a practice it has since repudiated. Continuing to recognize Bivens in any form perpetuates a usurpation of Congress's legislative power. Since Congress has created remedies for constitutional violations by state officers (§ 1983) but has chosen not to do so for federal officers, it is not the Court's role to fill that gap.
Dissenting - Justice Ginsburg
Yes. A Bivens remedy should be available for the cross-border shooting. This case does not present a 'new context,' but rather a familiar one: an excessive force claim against a law enforcement officer, which is the core of Bivens. The officer's unconstitutional conduct—firing the weapon—occurred on U.S. soil, and the fortuity of where the bullet landed should not bar a remedy. Even if it were a new context, no special factors counsel hesitation. The plaintiffs have no alternative remedy, as it is 'damages or nothing.' Concerns about foreign policy and national security are misplaced because the suit targets a rogue, rank-and-file officer's misconduct, not a high-level government policy. Denying a remedy is more likely to harm U.S.-Mexico relations than allowing one, and it is inconsistent with U.S. international commitments to provide remedies for rights violations.
Analysis:
This decision significantly narrows the availability of Bivens remedies and reinforces the Court's extreme reluctance to recognize new implied causes of action for constitutional violations by federal officers. By classifying a cross-border shooting as a 'new context' and finding that foreign policy and national security concerns are 'special factors counseling hesitation,' the Court has created a high bar for any future Bivens claims that are not identical to the three previously recognized. The ruling solidifies the Abbasi framework as a tool to restrict, rather than analyze, the expansion of Bivens, effectively shifting the responsibility to create such remedies entirely to Congress. It signals the near-impossibility of extending Bivens to any situation with cross-border, foreign affairs, or national security elements.
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