A case involving the fatal shooting of a Mexican national by a United States Border Patrol Agent is back at the Supreme Court a second time as the Justices heard arguments this week in Hernandez v. Mesa.
In 2010, Agent Jesus Mesa, Jr., shot and killed Sergio Adrian Hernandez Guereca, a 15-year-old Mexican national. Mesa was standing on the American side of the border in El Paso, Texas; Hernandez was across the border in Juarez, Mexico. Hernandez’s family sued Mesa for the illegal use of deadly force in violation of the Fourth and Fifth Amendments, and three years ago the case reached the Supreme Court for the first time. The Justices in a per curiam opinion sent it back to a lower court for further proceedings.
On Tuesday, the Court heard argument in a second appeal. But where the first appeal raised several distinct issues, including the question of how the Fourth Amendment applies to uses of force at the border, this week’s argument revolved around only a single question.
There is no federal statute giving individuals a general right to sue federal officials who violate their constitutional rights, known as a “cause of action”. (There is a statute allowing such suits against state officials, 42 U.S.C. § 1983.) But in 1971, the Supreme Court held that the Constitution itself can provide a cause of action. Bivens v. Six Unknown Named Federal Agents was a Fourth Amendment case in which federal agents had searched Walter Bivens’s home and arrested him, all without a warrant. The Court held that Bivens was not limited to the remedies provided by state trespass law, noting that state law may not fully protect the same interests as the analogous constitutional provision. Thus, a “private citizen, asserting no authority other than his own, will not normally be liable in trespass if he demands, and is granted, admission to another’s house. But one who demands admission under a claim of federal authority stands in a far different position.” Without the ability to sue for the violation of a federal right as such, people like Walter Bivens might be left without any effective remedy at all.
The logic of Bivens could be taken to imply that there is always a cause of action for violations of constitutional rights, and in Carlson v. Green (1980), the Court stated explicitly that Bivens actions should be the rule, not the exception. It identified only two situations in which such a cause of action does not exist: first, if “special factors counsel hesitation in the absence of affirmative action by Congress,” (see also Davis v. Passman (1979)); and second, if “Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective.”
However, the Court’s approach to Bivens has changed dramatically in the intervening four decades. Just a few weeks before the first Hernandez decision, the Court ruled in Zigler v. Abbasi that Bivens actions should be the exception, rather than the rule. Abbasi reflected broader changes in the Court’s approach to so-called “implied” causes of actions in federal statutes. When Bivens was decided, courts generally allowed anyone who had been harmed by conduct that violated a federal statute to sue, even if the law did not expressly authorize this. But in Alexander v. Sandoval (2001) the Court indicated that these “implied” causes of action are disfavored and that the judgment of who can sue to enforce violations of federal statutes belongs to Congress. Abbasi applied this same line of thinking to constitutional violations and noted that, because Congress had not created a broad cause of action for violations by federal officials in the decades since Bivens, it likely did not favor allowing such suits. The Abbasi Court also suggested that one “special factor counseling hesitation” in creating a Bivens remedy would be if the judiciary was not well-equipped to evaluate all the competing costs and benefits of allowing damages suits for certain kinds of violation.
The 2017 Hernandez decision thus did not address the substantive questions around the Fourth Amendment and the border. Instead, it held that the courts must first decide the Bivens question, and because Abbasi had been decided only a few weeks prior, the lower court should have the opportunity to rule on that issue under the appropriate legal framework. The case was remanded to the Fifth Circuit Court of Appeals, which declined to recognize a Bivens action in the context of a cross-border shooting. As the case returns to the Supreme Court, therefore, the only issue is the Bivens issue.
The Hernandez family’s lawyer, Steve Vladeck (editor-in-chief of Just Security), argued that this is not really a different context than Bivens itself: both cases concerned alleged violations of the Fourth Amendment by rogue federal officers. The Justices questioned Vladeck sharply, pressing him on the implications on allowing foreign nationals injured abroad to bring damages claims against American officials. In response, Vladeck pointed to the opposing side’s concession that, if Hernandez had been standing a few feet away on the American side of the border when he was killed, there would be no Bivens problem. None of the foreign policy concerns that would be implicated by allowing a Fourth Amendment suit in Hernandez’s case would be any different in that hypothetical. So why should the Bivens analysis be any different?
When Mesa’s counsel, Randolph Ortega, began his argument, the Justices—particularly Sotomayor and Breyer—pressed the same point on him, and Ortega largely struggled to give what they viewed as a satisfactory answer. Instead, Justices Breyer and Sotomayor argued that his arguments might be relevant to whether the Fourth Amendment applies to these shootings, but do not address whether, if it does, a Bivens remedy should be available. Justice Kavanaugh likewise suggested that many of the same foreign policy considerations would be equally present had Hernandez been present on the American side of the border.
Jeffrey Wall, the Principal Deputy Solicitor General, made a stronger showing in his argument for the federal government. He cited three reasons why the Court should not find a Bivens action in this case: the potential for frictions with the Mexican government, the general presumption against extraterritorial application of American law, and congressional actions that conspicuously declined to provide a damages remedy in these sorts of cases. The Justices also pushed Wall on whether his arguments applied to the Bivens issue or just to the underlying Fourth Amendment question.
Overall, despite the Court’s general disinclination to find new Bivens actions, it seems at least possible that Hernandez’s family will prevail—at this stage, at least.
Robert Black is Senior Fellow for Constitutional Content at the National Constitution Center.
