It has been a little over seven years since 15-year-old Sergio Hernandez was shot by Jesus Mesa, a U.S. Border Patrol agent, while Hernandez was standing on the Mexican side of the border. Hernandez’s family filed a lawsuit against Mesa, arguing that (among other things) the shooting violated Hernandez’s right under the Fourth Amendment to be protected against excessive deadly force. Both Mesa and the U.S. government urged the Supreme Court to uphold the lower courts’ rulings dismissing the family’s lawsuit, but their case survived – at least for now. Acknowledging that the facts outlined in the family’s lawsuit “depict a disturbing incident resulting in a heartbreaking loss of life,” the justices sent the case back to the lower court for it to take another look.
The Hernandez family had asked the justices to weigh in on two questions: whether the Fourth Amendment’s bar on excessive deadly force applies outside the United States and how courts should make that determination; and whether, even if Hernandez was protected by the Fifth Amendment’s guarantee that his life would not be taken without proper judicial proceedings, Mesa is immune from suit. But the justices asked the two sides to brief another question: whether the Hernandez family can rely on the Supreme Court’s 1971 decision in Bivens v. Six Unknown Named Agents, holding that a plaintiff can bring a private federal case for damages against federal officials who allegedly violated his constitutional rights, at all.
In an unsigned opinion, the Supreme Court emphasized today that the lower court had not given any consideration to the Bivens question. The justices noted that plaintiffs cannot rely on Bivens when there are “special factors counselling hesitation in the absence of affirmative action by Congress.” And in another decision last week, the court continued, it indicated that the focus of that inquiry should be whether courts are “well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.” Therefore, the court concluded, the case should go back to the lower court for it to consider what effect that ruling might have on the Bivens question in this case. Doing so, the court indicated, might eliminate any need for the court of appeals to decide whether Hernandez was protected by the Fourth Amendment – which, the court seemed to suggest, could be preferable to deciding the “sensitive” and potentially “far reaching” Fourth Amendment question.
The court disagreed with the lower court’s conclusion that Mesa was entitled to qualified immunity from the family’s Fifth Amendment claim. That conclusion, the court explained, rested on the fact that Hernandez was not a U.S. citizen and did not have any connection to the United States. But that fact isn’t relevant to whether Mesa can be immune from a lawsuit, the court countered, because Mesa only learned after the shooting that Hernandez was not a U.S. citizen. Here too, the court stressed, the lower court had not addressed whether the family’s claim could even proceed under Bivens; it will now consider that question, as well as a series of other arguments about qualified immunity, on remand.
Justice Clarence Thomas wrote separately to indicate that, in his view, the Hernandez family could not rely on Bivens at all. “This case,” he contended, “arises in circumstances that are meaningfully different from those at issue in Bivens and its progeny” – in particular, conduct that occurs across an international border. He would not have sent the case back to the lower court; instead, he would have put a halt to it altogether.
Justice Stephen Breyer dissented, joined by Justice Ruth Bader Ginsburg. In his view, Hernandez was protected by the Fourth Amendment when he was shot. Even if he was on the Mexican side of the border, Breyer reasoned, his location should not, standing alone, be dispositive. This is particularly true, Breyer continued, when you consider several factors. For example, Mesa – who shot Hernandez – is a federal law-enforcement officer, and the culvert where Hernandez was shot is in fact a “special border-related area” run by an international commission to which the United States contributes tens of millions of dollars each year. Moreover, a finding that Hernandez was not protected by the Fourth Amendment would create an anomalous result: Mesa could be held liable for shooting Hernandez if Hernandez was on the U.S. side of the “imaginary mathematical borderline running through the culvert’s middle,” but not if Hernandez was just a few feet on the other side of that line, even if everything else about the case, including Mesa’s behavior, remained the same. When all of these things are considered together, Breyer concluded, there is “more than enough reason for treating the entire culvert as having sufficient involvement with, and connection to, the United States to subject the culvert to Fourth Amendment protections.” He would therefore decide the Fourth Amendment question in favor of Hernandez and send the case back to the lower court for it to decide the Bivens and qualified immunity questions.