Is There Liability for Cross-Border Shooting?

Legal Sidebari

Is There Liability for Cross-Border Shooting?
Updated February 26, 2020
Update: On February 25, 2020, the Supreme Court affirmed the decision of the Fifth Circuit, holding that
the Bivens theory cannot be extended to encompass an implied-cause-of-action for cross-border shooting
claims.
In 2010, a border patrol agent, standing in the United States, shot and killed a 15-year old Mexican boy
standing across the border in Mexico. The Hernandez’s parents sued. Last June, the Supreme Court
returned the case to the U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit) for further legal
proceedings. Hernandez v. Mesa. The Fifth Circuit has now ruled that the Hernandez family may not sue
the border patrol agent under an implied-cause-of-action Bivens theory.
Bivens refers to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, a 1971 case in which
the Supreme Court held that a victim of an unconstitutional search and seizure enjoyed an implied cause
of action against the offending agents for damages in the absence of any other legal remedy. In later
cases, the Supreme Court has hesitated to recognize an implied cause of action for other constitutional
violations. Whether the Court will recognize an implied cause of action in these new-context cases turns
on the existence of any special factors suggesting that the existence of any remedy for the constitutional
violation should be left to Congress. The Court returned Hernandez to the Fifth Circuit for this “special
factor” analysis. The Fifth Circuit identified special factors that it held precluded recognition of an
implied cause of action.
Background
Although many of the facts are in dispute, all parties seem to agree that Border Patrol Agent Mesa shot
and killed Sergio Hernandez across the U.S.-Mexico border. The boy’s parents sued Agent Mesa, the
United States, and several federal agencies under various theories. The district court dismissed claims
under the Federal Tort Claims Act and the Alien Tort Statute. The boy’s parents also asserted a Bivens
cause of action for violations of the Fourth and Fifth Amendments. They contended unsuccessfully that
the shooting and death constituted use of excessive force and thus an unreasonable seizure under the
Fourth Amendment and a substantive due process violation under the Fifth Amendment.
Agent Mesa for his part invoked qualified official immunity. Qualified official immunity precludes a suit
for money damages against government officials arising out of actions occurring in performance of their
official duties. The immunity does not extend to conduct that is contrary to clearly established law with
which an official would be familiar. Agent Mesa argued that no Fourth or Fifth Amendment precedent
clearly covered conduct in a foreign nation.
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A Fifth Circuit panel affirmed the district court’s dismissal of the Federal Tort Claims Act and Alien Tort
statute claims. A full complement of the judges of the Fifth Circuit, sitting en banc, concluded that Agent
Mesa was entitled to qualified immunity with respect to the Fifth Amendment Bivens claim. The judges
affirmed dismissal of the Fourth Amendment claims because they concluded that the Fourth Amendment
did not apply outside of the United States to foreign nationals without ties to the United States.
The case arrived before the Supreme Court shortly after the Court had agreed to review another Bivens
claims case, Ziglar v. Abbasi. Writing for the Court in Abbasi, Justice Kennedy emphasized the Court’s
reluctance to recognize implied causes of action. Justice Kennedy explained that “Bivens will not be
extended to a new context if there are ‘special factors’ counselling hesitation in the absence of affirmative
action by Congress.” He stated further that “if there are sound reasons to think Congress might doubt the
efficacy or necessity of a damages remedy as part of the system for enforcing the law and correcting a
wrong, the courts must refrain from creating the remedy in order to respect the role of Congress in
determining the nature and extent of federal-court jurisdiction under Article III.”
The Supreme Court then turned to Mesa. The Court concluded the Fifth Circuit’s qualified immunity
holding was in error because it failed to address the fact that Agent Mesa had no idea whether the boy was
a U.S. citizen. The Court set aside the question of whether Hernandez’s Fourth Amendment rights had
been violated and returned the case to the Fifth Circuit for a threshold determination of whether the
Hernandez family enjoyed a Bivens implied cause of action.
Back in the Fifth Circuit
When the case returned from the Supreme Court, the Fifth Circuit decided that the case presented a “new
context” for Bivens purposes and that “special factors” counselled against recognizing an expanded
implied Bivens cause of action. If a case does not present a “new context” – that is, if a case is not
“different in a meaningful way” from the cases in which the Supreme Court has recognized a Bivens
implied cause of action – then an implied cause of action exists. The Fifth Circuit pointed out that
Hernandez presents unresolved and novel Fourth and Fifth Amendment claims.
As for special factors, the Fifth Circuit acknowledged the possibility of an implied cause of action in
some new-context cases, but concluded that here the special factors were too many and too weighty for
the plaintiffs to overcome. The Fifth Circuit identified five special factors that it believed indicated that
establishing a cause of action should be left to Congress. First, the Border Patrol is statutorily authorized
to deter and prevent illegal entry by terrorists, gun and drug smugglers, and unauthorized individuals,
“duties essential to national security.” Second, “extending Bivens in this context also risks interference
with foreign affairs and diplomacy.” Third, Congress might have, but refrained, from establishing a cause
of action against federal officials in the Federal Tort Claims Act and elsewhere. Fourth, Congress has
established other remedies for the alleged in the form of criminal prosecution. Fifth, “the extraterritorial
aspect of this case is itself a special factor that underlies and aggravates the separation-of-powers issues.”
One judge concurred, but would have resolved the case on the basis of qualified official immunity. In his
view, the absence of clearly established precedent settled the case in Agent Mesa’s favor. Two judges
dissented. They agreed that the case presented the issue in a new context. However, they did not consider
the majority’s special factors all that special. Instead, in their view, the “case simply involves a federal
official engaged in his law enforcement duties acting on United States soil who shot and killed an
unarmed fifteen-year-old boy standing a few feet away.” They would have recognized an implied cause
of action should the Hernandez family establish either a Fourth or Fifth Amendment violation.
At this point, the Hernandez family is free to petition the Supreme Court to review the Fifth Circuit’s
handiwork. It remains to be seen whether the family will petition for review and how the Court would

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respond to the petition if the family asks for review. On one hand, the Court in Abbasi characterized
Bivens and its progeny as the work of an “ancient regime” (i.e., the standard of a bygone day), a view that
would seem to foreclose future recognition of virtually any new Bivens implied causes of action. On the
other hand, the special factors the Court identified in Abbasi were fairly unique (high level executive
policy decisions relating to detention following the 9/11 terrorist attacks). The Court may want to take the
opportunity to explain just how special Bivens-defeating special factors must be. In any event, Congress
is free to address the situation legislatively.








Author Information

Charles Doyle

Senior Specialist in American Public Law






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LSB10135 · VERSION 3 · UPDATED

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