(Mar. 31, 2020) On February 25, 2020, the U.S. Supreme Court announced a 5–4 opinion holding that a U.S. Border Patrol agent was not liable for claims of Fourth and Fifth Amendment violations stemming from a cross-border shooting death of a 15-year-old Mexican national. (Hernández v. Mesa, No. 17-1678 (Feb. 25, 2020).)
In 2010, Sergio Adrián Hernández Güereca was with a group of friends in a concrete culvert near Ciudad Juarez, Mexico. The culvert separates Ciudad Juarez from El Paso, Texas, and the U.S.-Mexico border runs through the center of the culvert. Hernández and his friends were running from one side of the culvert to the other, then returning to the Mexican side of the border. U.S. Border Patrol agent Jesus Mesa, Jr. spotted the children and detained one of Hernández’s friends after he ran onto the U.S. side of the culvert. Mesa then fired two shots at Hernández, striking and killing him while he was on Mexican soil. The parties disputed whether Hernández and his friends were playing or attempting an illegal border crossing; Mesa also claimed they pelted him with rocks.
Hernández’s parents filed suit in the United States District Court for the Western District of Texas. Among other claims, they alleged that Mesa had violated Hernández’s Fourth and Fifth Amendment rights. Mesa filed a motion to dismiss, which the District Court granted. The case accumulated a complex procedural history, including two en banc dismissals by the Court of Appeals for the 5th Circuit and two grants of review by the Supreme Court. On its second review, the Supreme Court limited its scope to the question of whether a cross-border shooting could trigger cognizable claims for Fourth and Fifth Amendment violations under Supreme Court precedent.
Implied Causes of Action Under the Constitution
In Bivens v. Six Unknown Fed. Narcotics Agents (403 U.S. 388 (1971)), the Supreme Court held that federal agents can be held liable for constitutional violations committed while serving in their role, absent a federal statute specifically authorizing such a claim. (Bivens at 388.) Bivens arose from a Fourth Amendment claim for damages related to an unlawful search and arrest. The Supreme Court subsequently recognized implied causes of action under the Fifth Amendment (Davis v. Passman, 442 U.S. 228 (1979) (sex discrimination in employment)) and the Eighth Amendment (Carlson v. Green, 446 U.S. 14 (1980) (failure to provide medical treatment to inmates).)
Over the past few decades, the Supreme Court has declined to extend recognition of claims of constitutional violations against federal agents in multiple cases. (Hernández, slip op. at 7.)
In affirming the 5th Circuit Court’s dismissals, the Supreme Court distinguished this case from earlier cases that had identified an implied cause of action under the Constitution. The Court focused its analysis on separation of powers principles, reasoning that it should remain uninvolved with matters affecting foreign relations and national security, which fall under the purview of the executive and legislative branches. The Court noted that “[b]oth the United States and Mexico have legitimate and important interests that may be affected by the way in which this matter is handled. … It is not our task to arbitrate between them.” (Slip op. at 11.)
The Court further emphasized that Congress “has repeatedly declined to authorize the award of damages for injury inflicted outside our borders.” (Slip op. at 15.) Relevant causes of action under the Civil Rights Act of 1871 do not apply to federal agents’ actions and are available only to U.S. citizens or individuals within its borders; the Federal Tort Claims Act bars claims arising in a foreign country; and the Torture Victim Protection Act of 1991 creates a cause of action against foreign actors, not U.S. agents. As a result of this opinion, U.S. law provides no legal remedy for Hernández’s estate or parents.
Justice Alito delivered the opinion for the majority. Justice Thomas filed a concurring opinion, joined by Justice Gorsuch. Justice Ginsburg dissented in an opinion joined by Justices Breyer, Sotomayor, and Kagan.