Cross-Border Shooting Case Decided Today
Today the U.S. Supreme Court held in Hernandez v. Mesa that the parents (citizens of Mexico) of a teenager (also a citizen of Mexico) who was shot and killed by a U.S. Border Patrol Agent on the Mexican side of the U.S.-Mexico border are prohibited from suing the agent for damages under the U.S. Constitution.
CJLF originally joined the case in 2017 to encourage a decision denying the lawsuit. We argued that in a case involving relations between the U.S. and a foreign country, the judicial branch should not step in but should leave the matter to Congress. CJLF’s amicus curiae brief in that case (Hernandez I) is available here.
In 1971, the U.S. Supreme Court created an implied cause of action for damages arising directly under the Constitution. That case was Bivens v. Six Unknown Federal Narcotics Agents, and it involved a Fourth Amendment violation by federal agents. The Court has extended Bivens twice, the last in 1980. Since then the Court has refused to imply a Bivens type cause of action and remedy to any new context or category of defendants.
While Hernandez I was pending, the Court decided Ziglar v. Abbasi. In that case, the Court again refused to extend Bivens. The Court held that alleged terrorists from a foreign country could not sue U.S. officials for implementing anti-terrorist policies. The Court remanded Hernandez I back to the Fifth Circuit to determine if the Bivens question was affected by the Abbasi decision. On remand, the Fifth Circuit held that the “transnational aspect” of the case presented a “new context” and that the presence of multiple “special factors” weighed against extending Bivens. The Fifth Circuit again affirmed and refused to recognize a Bivens claim for the cross-border shooting.
In 2019, CJLF again joined the case to encourage a decision affirming the Fifth Circuit. Today the Court did just that in a 5-4 decision. CJLF’s brief in Hernandez II can be found here. The majority found that the Court’s previous practice of implying causes of action created great tension between the “Constitution’s separation of legislative and judicial power.”
Judicially created damages arising directly under the Constitution are a disfavored relic of the past. When a party asserts a Bivens type cause of action under the Constitution, a two-step analysis must follow: (1) whether the case presents a “new context”, and, if yes (2) whether “special factors” are present that would cause a court to hesitate before extending Bivens into that new context.
CJLF argued, and the Court agreed, that a cross-border shooting of a noncitizen on foreign soil absolutely presents a “new context.” The Court also agreed that “multiple, related factors” raised warning flags and counseled against extending Bivens here.
Factors such as the potential effect on foreign relations and national security concerns are best left to the legislative branch. CJLF argued that Congress, not the judiciary, is the proper branch to decide if noncitizens can recover for torts committed by federal law enforcement officials causing damage in a foreign country. The Court stated its opinion hinged on “respect for the separation of powers.”
“When evaluating whether to extend Bivens, the most important question “is ‘who should decide’ whether to provide for a damages remedy, Congress or the courts?” Abbasi, 582 U. S., at ___ (slip op., at 12). The correct “answer most often will be Congress.” 582 U. S., at ___ (slip op., at 12). That is undoubtedly the answer here.”