Case No. 17-1678 | 5th Cir.
Preview by Ian Bryant-Smith
In 2010, Border Patrol Agent Jesus Mesa, Jr., shot and killed 15-year-old Mexican citizen Sergio Adrián Hernández Güereca. Mesa was standing on the American side of the culvert that marks the boundary between the United States and Mexico, while Hernández was on the Mexican side. Hernández’s parents say that Hernández and his friends were playing a game in which they would run up the American side of the culvert, touch the fence, and run back into Mexico. A Department of Justice investigation claimed that Hernández and his friends were smugglers attempting an illegal border crossing and were throwing rocks at Border Patrol agents. Hernández’s parents sued Mesa in his personal capacity, claiming that he had violated Hernández’s Fourth and Fifth Amendment rights. The suit was brought under the Bivens doctrine, which allows federal officials to be sued for damages when they violate a person’s constitutional rights. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
This is the second time that this case has made its way to the Supreme Court. The first time, the Supreme Court remanded the case back to the Fifth Circuit because it had not considered whether Hernández could seek Bivens damages before dismissing his Fourth and Fifth Amendment claims. On remand, the Fifth Circuit considered whether Bivens should be extended to this scenario and determined that it ought not to be. That determination is now before the Supreme Court.
Hernández argues that the Fifth Circuit erred in determining that Bivens does not apply. Although the Fifth Circuit pointed to the fact that this case arose in a new and different context from traditional Bivens cases, and that it implicated unique factors including national security and foreign affairs, Hernández argues that these distinctions are not meaningful. On Hernández’s telling, the suit is “a conventional excessive force claim against a rogue federal law enforcement officer.” Brief for the Petitioners at 9, Hernández v. Mesa, No. 17-1678 (U.S. filed Aug. 2, 2019). And if the Supreme Court were to rule for Mesa, Hernández warns, there might ultimately be no avenue for redress in a claim such as this one.
Mesa’s position is rooted in an argument for judicial restraint. He argues that Congress, not the judiciary, ought to be responsible for creating causes of action for damages against federal officials. Even though Bivens itself is a judicially created cause of action, he argues, the courts must be cautious in expanding it. Because this fact pattern raises novel questions about whether Mexican citizens on Mexican soil enjoy constitutional rights, Mesa maintains that it is sufficiently different from a traditional Bivens action that Bivens should not apply absent authorization by Congress.
The overwhelming majority of amicus briefs in this case were filed in support of Hernández, including briefs from former Customs and Border Patrol officials, a range of immigrant and civil rights organizations, and the Mexican government. The United States filed an amicus brief in support of Mesa.