case law update

Hernandez v. Mesa Heard by Supreme Court

Recently, the Supreme Court heard oral argument in Hernandez v. Mesa to address issues arising out of the actions of U.S. Border Patrol agent Jesus Mesa when he fired a shot from United States soil that killed 15-year old Mexican boy Sergio Hernandez on Mexican soil.  

The issues at oral argument addressed whether: 1). a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, 2). whether qualified immunity may be granted or denied to an officer based on facts unknown to an officer at the time of an incident, and 3). whether a Bivens claim may be asserted against an officer for the cross-border shooting of a Mexican citizen.

At oral argument, Robert Hilliard, counsel for the parents of Sergio Hernandez, argued that this case was “one of the most simplest extraterritorial cases this Court will ever have.” Hilliard argued that all of Mesa’s conduct happened inside the United States, Mesa was a civilian domestic police officer, and Mesa deprived Hernandez, who was also a civilian, of the fundamental right to human life. 

Justice Kagan requested that Hilliard provide a rule to the Court that would permit a Bivens claim in this case. Hilliard replied, “when there is a cross-border shooting involving a Federal law enforcement officer on U.S. soil, and the resulting injury is in close proximity, then the Fourth Amendment constraints on that officer should apply.”

Chief Justice Roberts expressed concern that the principles Hilliard is contending cannot be so narrowly defined. He posed the hypothetical of a drone strike in Iraq where the plane was piloted from Nevada, and asked why the same analysis would not apply under those circumstances. Hilliard attempted to distinguish military versus civilian operations in response to the Chief Justice’s hypothetical, but Chief Justice Roberts expressed doubt that this distinction makes a difference.

Justice Breyer noted that Hilliard has a “very sympathetic case.” However, he reiterated Justice Kagan’s request that for a rule that would avoid confusion and uncertainty in other cases. Justice Alito also raised these concerns. Hilliard responded that the rule sought involves a “close proximity element” and that the rule “involves all of the conduct occurring on the … United States side.”

Justice Ginsburg asked Hilliard to respond to the argument that the Constitution only applies to those within the United States – meaning that an alien injured abroad has no Fourth or Fifth Amendment rights. Hilliard replied that the case of Boumediene v. Bush, 553 U.S. 723 (2008), proposes that “aliens abroad have constitutional rights, depending on whether … functionally, the Constitution should apply.” Boumediene identified “at least three” factors relevant to a functionalist analysis: the citizenship and status of a person claiming protection; the nature and location of the violation; and obstacles inherent in applying protection. Justice Kagan then directed attention to the rationale behind Hilliard’s rule. Hilliard replied that Boumediene’s objective factors and practical concerns were plugged into this rule.

Justice Kennedy noted that “[s]ince 1988, this Court has not recognized a single Bivens action.” Justice Kennedy also addressed the sensitive area of foreign affairs implicated by this case.  Hilliard suggested that he is not attacking the policy of the United States in regards to Mexico. What he contended was that the Fourth Amendment’s constraints on deadly force should apply because the agent’s conduct occurred inside the United States and there was a “close proximity cross-border shooting.”

Justice Kagan also raised an “anomaly” created by Hilliard’s rule – it would permit individuals to sue Federal agents but not State agents. Justice Ginsburg observed that in tort law, “when there’s an act outside that causes injury inside, the regulating rule can come from the place where the conduct occurred … the regulating rule can come from either place, the place where the act occurs or the place where it’s effect.” Justice Sotomayor then applied this concept to Justice Kagan’s concerns over application to State agents, noting that a State agent would be liable under this theory.

Following Hilliard’s argument, Randolph Oretga, counsel for Mesa, argued that the “border is very real and very finite” and that the Fourth Amendment “does not apply in a cross-border shooting of a Mexican civilian on Mexico soil by a United States Federal agent.”

Justice Breyer raised concerns to Ortega that the culvert between the United States and Mexico, where the shooting occurred, is “not just like a fence.” He stated that “[i]t is an area of two fences, and between those two areas is joint exercise of border maintenance authority.”

Justice Ginsburg then brought up United States law, which says, “[d]o not shoot to kill an unarmed, nondangerous person is no threat to your safety.” She stated that “[i]t’s the United States law operating on the United States official who’s acting inside the United States. This case has, as far as the conduct is concerned, United States written all over it.” In response, Ortega stated that it would be up to the United States to prosecute Mesa criminally under these circumstances. Justice Sotomayor then drew the distinction for Ortega between the criminal remedy for the government and a civil remedy for Hernandez’s family. In this case, no civil remedy would exist without a favorable decision for Hernandez’s family.

Chief Justice Roberts raised the issue of qualified immunity. The Chief Justice noted that it “seems very off to me that qualified immunity would turn on a jurisdictional issue.” He stated that “it’s odd to say the officer’s conduct is reasonable so long as it turns out the victim, you know, is – is Mexican, but it’s unreasonable if the exact same conduct and it turns out the victim is American.”

Justice Ginsburg echoed the Chief Justice’s concern, asking Ortega if a Bivens claim would exist if Hernandez was on United States soil. Ortega agreed that a Bivens claim would exist under those circumstances, but noted that “it’s very distinguishable because of the very real border. Wars have been fought to establish borders. The border is very real.”

Edwin Kneedler, counsel for the United States, then followed Ortega’s argument. He argued that the “antecedent question in this case is whether this Court should create a cause of action for damages under Bivens.” He continued that the Court has continually declined to extend Bivens to contexts out of recognition that Congress should create such causes of action.

Justice Kagan distinguished the current case before the Court from others. In other cases, there was an alternative remedy. Here there is none. Kneedler referred to Congress’s intervention in other scenarios where it fashioned causes of action, such as the Federal Tort Claims Act, or 42 U.S.C. § 1983, arguing that Congress has taken initiatives where no causes of action exist.

Justices Kagan and Breyer questioned Kneedler on the government’s position that the Court should be hesitant to “fashion” or “extend” a Bivens remedy to this case. Justice Kagan explained that the “heartland” of Bivens is that a law enforcement officer should not use deadly force in violation of the Fourth Amendment. As such, the Court does not “have to make up anything new” or “extend it.”

Justice Ginsburg asked Kneedler about an argument made in the government’s brief that the United States is answerable to Mexico for cross-border use of force. Kneedler responded that here the United States investigated the case criminally and concluded that criminal prosecution should not be brought.

Justice Breyer also noted that Boumediene suggests that while the “well-recognized boundary line” is a factor that determines the reach of the Fourth Amendment extraterritorially, it is not the only factor. Justice Kennedy also raised the extraterritorial application of the Fourth Amendment in this case. Hilliard contended then that the formalist approach in United States v. Verdugo-Urquindez, 494 U.S. 259 (1990), which suggested the Fourth Amendment does not apply to persons outside the United States should apply.

We will keep you updated when the Supreme Court issues a decision. 

Listen to the oral argument:  Hernandez v. Mesa


This case law update was written by Conor D. Dirks, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

Tags: Supreme Court, Customs and Border Protection , Fourth Amendment, fourth amendment right


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