Bivens at the Border: Supreme Court to Consider Whether Cross-Border Shooting Case Can Proceed

Bivens at the Border: Supreme Court to Consider Whether Cross-Border Shooting Case Can Proceed

Legal Sidebari

Bivens at the Border: Supreme Court to
Consider Whether Cross-Border Shooting
Case Can Proceed
November 7, 2019
On November 12, 2019, the Supreme Court is scheduled to hear oral argument in Hernández v. Mesa, a
case arising from the fatal shooting across the United States-Mexico border of 15-year-old Mexican
national Sergio Adrian Hernández Güereca by Customs and Border Protection Officer Jesus C. Mesa Jr.
The victim’s family brought suit seeking money damages pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, a 1971 Supreme Court decision holding that federal officers may
be sued for certain constitutional violations despite the absence of a statutory cause of action. However,
the Court has indicated in the decades following Bivens that this relief is only available in narrow factual
circumstances. In its 2017 decision, Ziglar v. Abbasi, the Court appears to shut the door on recognizing
new situations, raising questions over the availability of a remedy for constitutional violations by federal
officials.
Hernández raises a number of legal issues with significant implications. A decision in Hernández may
address the continued viability of Bivens post-Abbasi. Hernández also raises an issue as to the
extraterritorial reach of Bivens when the alleged unconstitutional conduct—particularly cross-border
actions—results in an injury to a non-U.S. national on foreign soil. Hernández further poses a question
about the scope and effect of several factors—concerns of national security, foreign affairs, and
alternative legal remedies—on the availability of a Bivens remedy post-Abbasi.
Bivens Jurisprudence
Although a plaintiff may sue state officers for money damages for constitutional violations under federal
law, no comparable statute gives a plaintiff the right to bring suit against federal officers for constitutional
violations. Despite congressional silence on the matter, the Supreme Court held in Bivens that the plaintiff
in that case–who claimed federal agents arrested and searched him without probable cause and with
excessive force in violation of the Fourth Amendment–could pursue his claim under a judicially created
private cause of action for money damages. Bivens rests on the premise that where a constitutional right
has been invaded, the plaintiff is entitled to a remedy—whether statutory or judicially created. Justice
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Brennan explained in Bivens that constitutional claims may be brought where Congress has not explicitly
proscribed recovery and “no special factors counsel[] hesitation” by federal courts in implying a cause of
action.
In the decades following, the Supreme Court has recognized a Bivens remedy in two other cases: Davis v.
Passman and Carlson v. Green. Davis held that an administrative assistant was entitled to sue a
congressman for sex discrimination in violation of the equal protection principles embodied in the Fifth
Amendment for money damages. In Carlson, the Court held that a prisoner’s estate was entitled to a
Bivens remedy for improper medical treatment, in violation of the Eighth Amendment’s prohibition on
cruel and unusual punishment. However, the Supreme Court has not expanded Bivens to a new context in
over 30 years. Central to this hesitation is an institutional concern over whether Congress or the courts
should provide a remedy for constitutional violations by federal officials.
In its 2017 decision in Abbasi, the Supreme Court addressed the availability of a Bivens remedy for a
group of non-citizens—mostly Muslim and of Middle Eastern origin—detained by federal authorities
following the September 11, 2001 attacks. The plaintiffs filed suit against the wardens and a group of
federal executive officials, asserting the conditions of their confinement violated the Fifth Amendment.
In a 4-2 holding, Justice Kennedy clarified the test to determine whether a Bivens remedy may be
available. Courts must engage in a two-part inquiry. First, courts ask whether the case presents a “new
context,” that is, whether it meaningfully differs from Bivens, Davis, or Carlson. Examples of differences
that “are meaningful enough to make a given context a new one” include: the rank of officers involved;
the constitutional right; the specificity of the action; the extent of judicial guidance on how an officer
should respond; the risk of intrusion by the judiciary into the function of other branches; or other special
factors. Second, regardless of whether the case constitutes a “new context,” a court must also consider
whether “special factors counsel hesitation” against judicial intrusion.
The Abbasi majority reasoned that the constitutional claims for conditions of confinement pursuant to a
high-level executive policy following the September 11, 2001 attacks had “little resemblance” to Bivens,
Davis, and Carlson and therefore constituted a new context. In its special factors analysis, the Supreme
Court explained that factors of national security, foreign policy, and the availability of legal alternatives—
injunctive and habeas corpus relief—weighed against an extension of Bivens. Because the case presented
a new context and special factors counseled hesitation against judicial intrusion, the plaintiffs were not
entitled to pursue money damages under Bivens. More broadly, the Abbasi decision suggests that courts
should rarely, if ever, allow a Bivens suit to proceed against federal officials for alleged constitutional
violations outside of the very narrow factual contexts of Bivens, Davis, and Carlson.
Hernández v. Mesa
Background
On June 7, 2010, Sergio Adrian Hernández Güereca, a 15-year-old Mexican national, was with a group of
friends in a cement culvert that sits at the international boundary between El Paso, Texas and Ciudad
Juarez, Mexico. Mesa, while standing on U.S. territory, fired at least two shots at Hernández, fatally
injuring him as he stood on the Mexican side of the border. In 2011, Hernández’s parents filed suit
seeking a Bivens remedy, claiming (1) the shooting was an unreasonable application of excessive force in
violation of the Fourth Amendment and (2) the shooting violated Hernández’s Fifth Amendment
Substantive Due Process rights.
The U.S. District Court for the Western District of Texas dismissed the suit, holding that the plaintiffs
could not pursue a Bivens remedy because the injury occurred on foreign territory and Hernández, a
foreign national, lacked sufficient connections to the United States. The district court relied on United

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States v. Verdugo-Urquidez, in which the Supreme Court held the Fourth Amendment did not apply to a
search by U.S. law enforcement agents of the home of a Mexican national located in Mexico. The district
court also dismissed the Fifth Amendment claim on the ground of qualified immunity. Qualified immunity
protects federal officials from suits that allege the official violated a plaintiff’s rights, except where the
official violated a “clearly established” statutory or constitutional right. A Fifth Circuit panel affirmed in
part and reversed in part. On rehearing by the full court, the Fifth Circuit affirmed the district court’s
dismissal, holding: (1) the plaintiffs could not pursue a Fourth Amendment Bivens claim; and (2) Mesa
was entitled to qualified immunity on the Fifth Amendment claim.
The Supreme Court granted certiorari and, in 2017, reversed the en banc Fifth Circuit’s holding that Mesa
was entitled to qualified immunity. The Supreme Court remanded the case to the Fifth Circuit and
instructed it to address whether Hernández’s parents may recover Bivens damages in light of the Supreme
Court’s holding and analysis in Abbasi—decided a week earlier. On remand, the en banc Fifth Circuit
affirmed 13-2 the district court’s dismissal, declining to extend Bivens to this “new context” due to the
extraterritorial nature of the injury. The Fifth Circuit also reasoned that special factors—national security
concerns, foreign affairs, congressional inaction, and alternative methods of deterrence—weighed against
an extension of Bivens.
The Supreme Court granted certioriari to address whether Hernández’s parents may pursue a Bivens
remedy.
Preview of Arguments
Before the Supreme Court, Hernández’s parents argue the Fifth Circuit erroneously held they were not
entitled to pursue a Bivens remedy. They contend this case does not present a “new context” because they
are pursuing an excessive force claim similar to Bivens against an individual law enforcement officer.
They further claim that even if this case constitutes a “new context,” that is not determinative as to the
availability of a Bivens remedy.
The plaintiffs also reject the Fifth Circuit’s reliance on the presumption against extraterritoriality—which
counsels against the application of U.S. law in foreign territories—as a factor in the “new context”
analysis. The presumption is rooted in a canon of statutory construction that “[w]hen a statute gives no
clear indication of an extraterritorial application, it has none.” The Supreme Court has expanded this
principle to other contexts, reasoning the principles underlying the presumption against extraterritoriality
constrain courts as well. According to Hernández’s parents, the presumption’s purpose to avoid
international discord resulting from the application of U.S. law in foreign territory is not relevant to this
case because “any ‘international discord’ ... comes from the potential unavailability of civil remedies
under U.S. law.” They further argue that the principle that Congress legislates only with domestic
application in mind is of no relevance to constitutional interpretation by the courts. Alternatively, they
assert the presumption of extraterritoriality is overcome, as the incident “touch[es] and concern[s] the
territory of the United States.”
According to Hernández’s parents, the “special factors” identified by the Fifth Circuit do not weigh
against allowing a Bivens claim to proceed. The plaintiffs reason that the factors of national security and
foreign affairs are not applicable because Hernández involves misconduct by a single law enforcement
officer. They argue these facts are in stark contrast to Abbasi, in which the plaintiffs claimed executive
officials implemented a high-level policy following the September 11, 2001 attacks. Nor, they argue, does
extraterritoriality serve as a persuasive “special factor” for the same reasons above.
The plaintiffs also claim that Congress’s failure to pass legislation creating a cause of action to sue for
constitutional violations by federal officials or addressing the issue of extraterritoriality is not indicative
of congressional intent to bar such claims. Lastly, Hernández’s parents express concern over the
unavailability of alternative remedies. They reject the Fifth Circuit’s reasoning that potential criminal

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liability and a potential state-law claim constitute sufficient remedies to compensate for harm and deter
misconduct. Because the Westfall Act bars any state tort claim against a federal official acting within the
scope of employment, they reason this case is “Bivens or nothing.”
The United States filed an amicus curiae brief and will be arguing on Mesa’s behalf before the Court.
According to both the United States and Mesa, this case presents a new context because it involves an
injury to a foreign national on foreign territory. The United States also argues this case is meaningfully
different from Bivens, Davis, and Passman, as the Supreme Court has never recognized a Bivens remedy
for a violation of the substantive due process component of the Fifth Amendment.
With regard to special factors, the United States argues several considerations counsel hesitation against
judicial intrusion. The United States encourages the judicial branch to not intervene in matters of national
security and foreign policy, arguing those areas are best left to the political branches. The United States
and Mesa maintain that the presumption against extraterritoriality highlights the inappropriateness of
expanding Bivens remedies to foreign nationals injured on foreign territory. According to the United
States, congressional inaction is illustrative of Congress’s declination to recognize a Bivens remedy for
constitutional injuries suffered by foreign nationals on foreign territory. Additionally, the United States
suggests the absence of an alternative remedy does not require an extension of Bivens. And regardless, the
United States claims, executive redress—such as investigations and prosecutions of federal officials—
serves Bivens’s core purpose of deterring unconstitutional conduct.
Possible Outcomes
Despite the recent clarification and guidance in Abbasi, there are several possibilities in how the Supreme
Court may balance the novelty of Hernández —particularly the extraterritorial nature of the injury—and
the weight of any special factors.
The Supreme Court could decline to extend Bivens on the grounds that Hernández constitutes a new
context and special factors weigh against an extension of Bivens. The Court may elect to focus on the
extraterritorial nature of the injury as evidence of a new context. Alternatively, the Supreme Court could
view the facts of Bivens, Davis, and Carlson narrowly and conclude that the facts and alleged
constitutional violations in Hernández meaningfully differ. In either case, a determination of a “new
context” would likely disfavor an extension of Bivens to Hernández, as the Court has continuously
viewed the scope of Bivens in an increasingly narrow manner.
On the other hand, the Supreme Court could hold that Hernández presents a classic Bivens excessive
force claim by an individual officer, reasoning Bivens also involved allegations of excessive force in
effecting a seizure. The Court may reject Mesa and the United States’s argument that the location of the
injury alters the new context analysis. Rather, it may conclude that extraterritoriality is best considered as
a special factor as opposed to a new context.
Even if the Supreme Court were to conclude Hernández does not present a new context, it would,
consistent with Abbasi, still consider whether special factors counsel against allowing a Bivens claim to
proceed. The Court could determine one, or several, special factors counsel hesitation in recognizing a
Bivens remedy. It could reason that, under Abbasi, the protection of the United States-Mexico border
sufficiently implicates national security and foreign affairs and policy. If the Supreme Court were to
conclude so, it would most likely hold that judicial intrusion is inappropriate under the principle of
separation of powers. It could also conclude that the extraterritorial nature of the injury counsels against
an extension of Bivens. Additionally, the Court could reason congressional inaction indicates that
Congress does not intend for foreign nationals to pursue a claim against federal officials for injuries
occurring on foreign territory.

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Alternatively, the Supreme Court could find special factors do not weigh against an extension of Bivens. It
may reason that national security and foreign policy are not sufficiently implicated where the alleged
constitutional violation results from an altercation between a single law enforcement officer acting on
U.S. territory and an individual who happened to be of foreign nationality and standing on foreign
territory. The Court may elect to distinguish Abbasi, noting the high rank of the officials involved and the
alleged violations stemming from high-level executive policy following the September 11, 2001 attacks.
If the Court concluded this case involved a classic Bivens claim and special factors were not persuasive
against judicial intrusion, the Hernández plaintiffs would most likely be permitted to pursue their suit.
The Supreme Court would likely address whether an extension of Bivens is required or merely a
persuasive factor to consider when the plaintiff has no alternative civil remedy. The Court might point to
Abbasi for the proposition that the plaintiff need not have a money damages remedy, as Abbasi reasoned
that the availability of injunctive and habeas relief were sufficient legal alternatives. Then again, the Court
might determine Hernández’s parents lack an alternative remedy but conclude the unavailability of a
remedy is merely a factor to consider and not determinative. The Supreme Court could conjecture that a
damages remedy is unnecessary, as Bivens’s core purpose of deterrence is served by a threat of criminal
prosecution for misconduct.
Considerations for Congress
Regardless of Hernández’s outcome, the availability of a money damages remedy for constitutional
violations by federal officers continues to be a topic of discourse. Courts often comment that Congress is
best-suited for establishing such a cause of action. Congress could pass legislation creating a cause of
action with a money damages remedy for constitutional violations by federal officials acting within the
scope of their employment. And more specifically to Hernández, Congress could pass legislation that
extends a damages remedy for cross-border constitutional violations. Alternatively, Congress could repeal
the provision in the Westfall Act that bars plaintiffs from pursuing state-law tort claims against federal
officials acting within the scope of their employment.
On the other hand, Congress could adopt legislation limiting money damages remedies for constitutional
violations by federal officials. Likewise, if Congress was concerned about the extension of Bivens to
injuries on foreign territory, it could approve legislation restricting a Bivens remedy to domestic injuries.

Author Information

Kelsey Y. Santamaria

Legislative Attorney (Constitutional Law)

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