Border Agents Shouldn’t Get Sued For Shooting Foreigners, Trump Administration Tells Supreme Court

Justice Brett Kavanaugh could be an unlikely swing vote in a cross-border shooting case that could have wide-ranging consequences for law enforcement accountability. Coming directly after the Supreme Court heard the contentious DACA case on Tuesday, Hernandez v. Mesa involves the tragic death of Sergio Adrian Hernandez Guereca, a 15-year-old Mexican teen who was shot and killed in June 2010 by U.S. Border Patrol Agent Jesus Mesa, Jr.

According to his parents, who filed a lawsuit shortly after their son’s death, Sergio was unarmed and nonthreatening on the Mexican side of the border when he was shot by Mesa, who fired from U.S. soil. With other legal remedies blocked, Sergio’s parents filed a Bivens claim, named after a 1971 Supreme Court case that authorized lawsuits against federal officers in federal court when they violated someone’s constitutional rights.

As the Institute for Justice detailed in an amicus brief, Bivens has a “storied pedigree” dating back to English common law and continues “the tradition of holding federal officers personally liable for violations of constitutional rights.” But in 2017, the Supreme Court declared that extending Bivens is “disfavored” and that courts should not apply Bivens to a “new context” if there are “special factors counselling hesitation.”

On behalf of the Trump administration, which filed its own amicus brief, Principal Deputy Solicitor General Jeffrey Wall argued that “foreign relations with Mexico” and “the need for border security” are “special factors” that should block the Bivens claim for Sergio’s parents. 

In an incredible admission that broke with the Justice Department’s previous position and Mesa’s own attorney, Wall argued that the families of foreigners shot and killed by the Border Patrol shouldn’t be able to sue for damages even in cases where the shooting occurred “ten miles from the border” on U.S. soil.

Urging “judicial modesty,” Wall claimed that if courts second-guess Justice Department investigations and Border Patrol policies, that would “directly undermine the credibility of the executive branch in working with a foreign government.”

“It’s easy to just sort of wave your hands and say, ‘foreign affairs’ when there’s been a cross-border shooting,” quipped Justice Elena Kagan. It’s “not an embarrassment,” she added, that “we live in a country in which courts play an important role in determining whether conduct is lawful.”

In fact, the Mexican government itself argued that “this case has nothing to do with international terrorism, espionage, or any other national security concerns” and instead “arose in the context of ordinary law enforcement activities, just as if Sergio had been shot on U.S. soil.” Moreover, the United Mexican States claimed that failing to provide “the right to an effective remedy when fundamental rights have been violated” in cross-border shootings would undermine the U.S.’s human rights obligations. “A nation’s obligations to respect human rights do not stop at its borders but apply anywhere that the nation exercises effective control,” their amicus brief asserted.

Fitting for a case involving the Border Patrol, most of the oral argument in Hernandez centered around “line drawing” and where to include or exclude Bivens claims. Early on, Justice Neil Gorsuch wanted to know the case’s “limiting principle” since there are “all kinds of torts that can occur transnationally.”

Arguing for the parents, Stephen Vladeck, a law professor at the University of Texas at Austin, answered that limiting claims to the “law enforcement context” enjoys “the strongest appeal to the historical tradition;” a victory for Sergio’s family could be distinguished from damages arising from military operations. (Notably, Mesa’s attorney, Randolph Ortega, later invoked a drone pilot “hitting the wrong village in Syria” as a potential example of unlimited liability under Bivens.)

Calling the Border Patrol “a paramilitary organization” at the “forefront of national security,” Ortega warned that ruling against his client “would create a chilling effect” for Border Patrol agents “conducting their day-to-day activities.”

But that argument found a cold reception among several justices. “What makes it ‘chilling’ to tell a border patrol agent don’t shoot indiscriminately at children standing a few feet from the border?” asked Justice Sonia Sotomayor.

“It will freeze the border patrol, to which I think: good,” Justice Stephen Breyer added. “I don’t think there’s an American anywhere in the world who wouldn’t want to stop the kind of action here.”

In a different tack, Ortega argued that letting Hernandez’s parents sue in federal court would “create chaos” and “instability in the lower courts,” as judges would apply Bivens “on an ad hoc basis.”

“What’s the greater instability when you already admit that Bivens would apply if that child was standing two feet from the border?” Sotomayor asked. The case and others like it involve “a U.S. defendant acting on U.S. soil, pulling the trigger on U.S. soil,” who “always knows he’s inside and subject to U.S. law,” she noted. “That never changes no matter what we do here.”

“The chaos argument’s not resonating with me,” Kavanaugh responded. “You would just extend it and it would apply just like Bivens applies to lots of cases all the time,” noting that “Justice Sotomayor gave you the line: You have a defendant on U.S. soil who’s a U.S. official.”

Kavanaugh also pressed Ortega about the “lack of alternative remedies” for Sergio’s parents. After his death, the U.S. Justice Department investigated the shooting but declined to prosecute Mesa. Mexico, on the other hand, has indicted Mesa for murder, but the United States will not extradite the agent to stand trial. And while victims and their families have long been able to sue rogue officers for violating their rights under state common law, that is no longer an option thanks to the 1988 Westfall Act. As Vladeck succinctly phrased it, “for the petitioners here, it is Bivens or nothing.”

Tuesday marked the second time the Supreme Court heard this case. Soon after Sergio’s family filed suit, a federal district court dismissed all of their claims, with many of those judgements ultimately upheld by a panel of judges on the Fifth Circuit U.S. Court of Appeals. The panel did rule that the parents could proceed with their Bivens claim against Agent Mesa alone, not under the Fourth Amendment (the typical avenue for excessive-force lawsuits), but under the Fifth Amendment on due-process grounds.

Less than one year later, the entire Fifth Circuit reheard the case en banc and ruled that even if Agent Mesa violated Sergio’s Fifth Amendment rights, Mesa was entitled to “qualified immunity” and couldn’t be sued.

But the Supreme Court tossed that decision in 2017, and sent the case back down to the Fifth Circuit to determine if Agent Mesa did violate Sergio’s Fourth Amendment rights. “The Fourth Amendment question in this case,” the court held, is “sensitive and may have consequences that are far reaching.”

As for the family’s Fifth Amendment argument, that too was back in play. Since Agent Mesa didn’t know Sergio’s nationality or if he had any deep ties to the United States, the lower court erred in granting him qualified immunity, the High Court held. But when the Fifth Circuit again heard the case en banc in 2018, it again rejected the Bivens claim brought by Sergio’s parents, declaring that “this is not a garden variety excessive force case against a federal law enforcement officer.”

Justice Stephen Breyer, along with Justice Ruth Bader Ginsburg, dissented in Hernandez I. The Supreme Court’s two newest justices, Neil Gorsuch and Brett Kavanaugh, didn’t participate in the first Hernandez decision, though the final outcome in Hernandez II will most likely hinge on how those two rule.

Refusing to allow a Bivens claim for Sergio’s parents would “eliminate the one deterrence that is meaningfully available to ensure that officers in the nation’s largest law enforcement agency are complying with the law,” Vladeck argued. “Distilled to its simplest, the government’s position in this case is that officers in what is self-described as the nation’s largest law enforcement agency should have a functional absolute immunity, at least where foreign nationals are concerned.”

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I'm a writer and legislative analyst at the Institute for Justice (IJ), a public interest law firm. As a member of IJ’s Communications team, I regularly write opeds and

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