Constitutional Law - Shoot First, Ask No Questions Later: The Supreme Court Chooses Not to Extend Bivens to Victims of Cross-Border Shootings - Hernandez v. Mesa.

• Author: Strangie-Brown, Elisa

Constitutional Law--Shoot First, Ask No Questions Later: The Supreme Court Chooses Not to Extend Bivens to Victims of Cross-Border Shootings--Hernandez v. Mesa, 140 S. Ct. 735 (2020).

In its landmark 1971 decision Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, (1) the Supreme Court held that a federal agent who violates the Constitution by infringing upon another's rights can be held liable for monetary damages. (2) This implied private right of action under the Fourth Amendment later became known as a Bivens action. (3) Nevertheless, quickly after expressing that such a right of action exists, the Supreme Court limited the reach of Bivens actions by characterizing any extension of the remedy to new facts as disfavored and then closely examining any "special factors counseling hesitation" in the absence of affirmative congressional action before allowing a plaintiff's case to proceed. (4) In Hernandez v. Mesa, (5) a splintered Supreme Court held that a Bivens remedy was not available in a cross-border shooting between U.S. and Mexican soil. (6) The Court held that an extraterritorial shooting presented a new context for a Bivens claim that the Court disfavored, and further that "special factors" counseled hesitation in permitting the case to proceed; thus, the Court left creating a remedy applicable to these facts to Congress. (7)

On June 7, 2010, a fifteen-year-old Mexican national named Sergio Adrian Hernandez Guereca was socializing with his friends in a dry cement culvert separating El Paso, Texas from Ciudad Juarez, Mexico. (8) The international border ran straight down the middle of the culvert. (9) The complaint alleged that the teenagers were playing a game in which they ran up the United States side of the embankment, touched the border fence, then returned to the Mexican side of the embankment. (10) CBP Agent Jesus Mesa Jr. (Agent Mesa) eventually arrived at the scene and detained a member of the group on the U.S. side. (11) After Hernandez ran back to Mexican territory, Agent Mesa fired two shots across the border, hitting Hernandez once in the face and killing him. (12)

The shooting sparked an international response and, following a DOJ investigation, Hernandez's parents sued Agent Mesa under Bivens, alleging that his actions violated Hernandez's Fourth and Fifth Amendment rights. (13) The District Court for the Western District of Texas dismissed the claims and the Fifth Circuit affirmed this dismissal on two occasions. (14) In 2014, the Fifth Circuit affirmed the dismissal, holding that Hernandez did not enjoy Fourth Amendment protections as a Mexican citizen without a "'significant voluntary connection' to the United States" and that qualified immunity protected Agent Mesa from liability on the Fifth Amendment claim. (15) In 2018, the Fifth Circuit heard the case on remand and again affirmed the dismissal of Hernandez's Bivens claim. (16) In 2019, nearly ten years after the shooting, the Supreme Court granted certiorari to resolve whether Hernandez's claim arose in a new Bivens context and, if so, to analyze the special factors counseling against extending Bivens. (17) The Supreme Court ultimately affirmed the Fifth Circuit's decision, holding that the cross-border shooting was a new Bivens context in which several special factors counseled against extending a remedy. (18) These factors included the potential impact on foreign relations between the United States and Mexico; the executive branch's duty, power, and institutional competence to maintain and regulate border security; and Congress's failure to confer judicial power to adjudicate such an action. (19)

The Supreme Court first recognized damages as a remedy for a federal official's unconstitutional conduct in Bivens. (20) In Bivens, federal agents entered and searched Webster Bivens's home, threatened his family and arrested him in front of them, then transported him to a federal courthouse where he was interrogated, booked, and visually strip searched. (21) When deciding whether to allow monetary damages, Justice Brennan emphasized the importance of an individual's right to protect against invasion of their privacy and declared that when the federal government intrudes upon a person's Fourth Amendment rights, the judiciary is the only avenue for protection. (22) Following Bivens's victory, from 1971 to 1980, the Supreme Court permitted Bivens actions based on two other Bill of Rights violations, one based on the Fifth Amendment's guarantee of due process and the other based on the Eighth Amendment's guarantee of minimally-adequate prison medical care. (23) As a result, Bivens actions serve as a tool to both deter individual officers from violating the Constitution and make plaintiffs whole when federal officers harm them and they lack an alternative remedy. (24)

As Bivens jurisprudence developed, it narrowed, and the Supreme Court eventually concluded that if a Bivens claim differs in any meaningful way from the three original Bivens cases, the Court must closely and carefully consider any special factors counseling hesitation in allowing a damages remedy, which are usually dispositive of the entire action. (25) The Court limited the Bivens doctrine for the same reason that it has limited its own power to imply other statutory private rights of action--providing a remedy for a violation of the law is a legislative function, not a judicial function. (26) Further, the Court has been thoroughly reluctant to adjudicate any claims with possible national security or foreign policy implications. (27)

Some scholars interpret the Supreme Court's narrowing of Bivens as evidence of its increasing hostility towards providing remedies for constitutional violations by state actors and, more broadly, as a procedural barrier to federal courts' role in protecting against tyranny of the majority. (28) Other scholars articulate that the Court's declaration that a Bivens remedy is a constitutional rule contradicts its insistence that Congress can circumvent the remedy at its discretion, since Congress cannot overrule any portion of the Constitution with ordinary legislation. (29) Whether a Bivens action is firmly grounded in modern constitutional principles or is a "relic of the heady days" of judicial activism remains unresolved. (30)

In a five-to-four decision, the Court in Hernandez v. Mesa ultimately held that the cross-border nature of Hernandez's claim implicated too grave a breach of separation of powers to allow the case to proceed. (31) The Court first determined that Hernandez's claim arose in a new context because of the shooting's location, even though it arose under the Fourth and Fifth Amendments, two constitutional provisions to which Bivens has historically applied. (32) Three related factors counseled hesitation in extending a remedy to Hernandez: First, the Court examined "the potential effect on foreign relations" and concluded that judicial intervention would intrude on the executive's diplomatic functions with Mexico. (33) Second, allowing the case to go forward necessarily implicates national border security, and the Court refused to allow any opportunity to undermine the executive's established border-security policies. (34) Lastly, the Court examined several statutory schemes granting monetary damages to victims of government abuses, and ultimately reasoned that Congress never authorized judicial remedies for injuries inflicted by U.S. agents abroad. (35)

Justice Thomas, joined by Justice Gorsuch, concurred, but called for abrogating Bivens entirely, characterizing the doctrine as unauthorized judicial legislation for which "[s]tare decisis provides no 'veneer of respectability to [the Court's] continued application of [such] demonstrably incorrect precedents.'" (36) Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, dissented because the majority opinion failed to correctly apply recent Bivens precedent--Hernandez's claim did not arise in a new context because Bivens suits are settled and necessary remedies against rogue law enforcement in the search-and-seizure context, despite Agent Mesa's bullet landing on Mexican soil. (37) Furthermore, the dissenting Justices disagreed with the majority that recognizing the lawsuit would negatively impact foreign policy, asserting that it would actually support foreign policy because the United States committed to protecting individual liberties in the International Covenant on Civil and Political Rights. (38) The dissenters also justified their willingness to extend Bivens by refuting the majority's national security concerns as nonspecific and pretextual. (39)

Based on the Supreme Court's fractured analysis, the future of the Bivens remedy is as grim as it is unclear. (40) Notably, only Chief Justice Roberts and Justices Alito and Kavanaugh agreed on the majority opinion's rationale that Bivens is still an appropriate remedy in certain narrow circumstances that do not offend separation of powers, but not in cross-border shootings where judicial intervention could "upset the delicate web of international relations." (41) As a result of Justice Thomas's concurring opinion calling for an abrogation of the entire remedy, more Justices agreed with the dissent's viewpoint on the future strength and validity of the Bivens doctrine, particularly as it pertains to unconstitutional conduct by rogue federal officials, than the majority opinion. (42) The dissent's analysis tracks prior Bivens jurisprudence with more precision and logic than the majority's sweeping declarations and powerfully declares an obvious truth woven through this case: It simply does not matter (not "one whit," according to Justice Ginsburg) that Agent Mesa's bullet landed on the Mexican side of the border. (43) Despite the fact that the dissent's analysis of Bivens's implications for future cases won more votes than the majority and that it more closely and logically aligned...