Cross-border shooting ruling locks victims out of court

Agent Jesus Mesa Jr. fired the fatal face shot across the border between El Paso, Texas and Ciudad Juarez, Mexico, killing Sergio Adrián Hernández Güereca. The targeted 15-year-old had thrown rocks at him. Lower federal courts had reached conflicting results on the issue of whether parents could bring a civil damage claim against the agents who shot their teen-aged sons in two unrelated incidents. Last week's 5-4 Supreme Court decision buried the Hernandez family's claims. Hernandez v. Mesa, 2020 DJDAR 1532 (Feb. 25, 2020).

As reported in Mexico's 2018 filing: "Review by this Court is important to ensure that victims of cross-border violence are not deprived of their day in court. ... Shootings at the border are, unfortunately, far from a rare occurrence. U.S. Customs and Border Protection data on use of force disclose that agents ... have used firearms in 194 incidents since 2012. According to a recent analysis ... the use of force by CBP agents has resulted in 97 deaths since 2003, nearly all of them at or near the U.S.-Mexico border." Brief of the Government of the United Mexican States, 2018 WL 3533074, p.6-7.

The legislative-judicial ancestry for the parents' civil damage claim was sired by a vintage civil rights statute. In 1871, Congress authorized statutory claims against state officials for their "deprivation of any rights ... secured by the Constitution and laws." 42 U.S.C. Section 1983. In 1971, the Supreme Court conjured a judge-made remedy against federal officials. It triggered civil suits by a person who is "entitled to recover money damages for any injuries he has suffered as a result of the agents' violation of the [Fourth] Amendment" protection against unreasonable searches and seizures. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 397 (1971).

Within the same decade, the Supreme Court recoiled from that expansion of federal officials' liability: "When Congress intends private litigants to have a cause of action to support their statutory rights, the far better course is for it to specify as much when it creates those rights." Cannon v. Univ. of Chicago, 441 U.S. 677, 717 (1979). The Supreme Court did not thereby overrule its Bivens precedent. But its scope was severely restricted.

In Hernandez, the Supreme Court restated its interim precedent, "express[ing] doubt about our authority to recognize any causes of action not expressly created by Congress." It considered Congress to be in the best position to evaluate federal official liability, given that judge-made constitutional tort liability had become a disfavored remedy. In their concurring opinion, Justices Clarence Thomas and Neil Gorsuch advocated for overruling Bivens. They reloaded the court's earlier dicta that "Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action." Correctional Services Corp. v. Malesko, 534 U.S. 61, 75 (2001) (Scalia, J., concurring).

But the Hernandez majority opted not to bushwhack Bivens. It instead focused on the Supreme Court's interim two-step precedent, exemplified by Zigler v. Abbasi, 137 S.Ct. 1843 (2017). First, is the officer's conduct triggered by a "new" context? Second, are there "special factors" that counsel hesitation -- judicial reluctance to extend Bivens to such cases?

The majority's step one viewed the Hernandez facts as triggering a new, "meaningfully different" liability context -- which it melodramatically characterized as "glaringly obvious." The majority aimed to heighten the liability bar, associated with novel circumstances wherein the officer is unfamiliar. The fatal shooting in the conflicting result case, on the other hand, did not arise in a "new" context. Agent Lonnie Swartz fired 10 shots across the border into a 16-year-old's back. Rodriguez v. Swartz, 899 F.3d 719 (9th Cir., 2018). For Agent Mesa, as the four-judge dissent asserted, his "[r]ogue U.S. officer conduct falls within a familiar, not a 'new,' Bivens setting." (Ginsburg. J., dissenting).

Step two raised multiple warning flags on foreign relations, national security, extraterritoriality, and separation of powers flagpoles. The U.S. government is always responsible to foreign sovereigns, when federal officials injure foreign citizens on foreign soil. That circumstance triggers delicate diplomatic negotiations. The U.S. refused Mexico's request to extradite Agent Mesa. But it did resolve to work with the Mexican government, within existing mechanisms, to prevent future incidents. Mexico's filing countered: "When agents of the United States government violate fundamental rights of Mexican nationals and others within Mexico's jurisdiction, it is a priority to Mexico to see that the United States has provided adequate means to hold the agents accountable and to compensate the victims. The United States would expect no less if the situation were reversed and a Mexican government agent had killed a U.S. national." United Mexican States, at 2.

The majority nevertheless seized upon the court's relevant precedent to illustrate that "matters relating 'to the conduct of foreign relations ... are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.'" Haig v. Agee, 453 U.S. 280, 292 (1981). So "courts traditionally have been reluctant to intrude upon the authority of the Executive" in such cases. Department of Navy v. Egan, 484 U.S. 518, 530 (1988).

Regarding the national security factor, Sergio's parents argued that nothing he did implicated national security. But the court responded that "regulating the conduct of agents at the border unquestionably has national security implications, [and] the risk of undermining border security provides reason to hesitate before extending Bivens into this field."

The 5th U.S. Circuit Court of Appeals' decision below had considered this factor when it previously denied a remedy to Serio's family. The nascent border guard liability arguably threatened executive branch management of national security. As urged by the dissenters in the Rodriguez case, a Bivens remedy in this transnational context increases the likelihood that border patrol agents will hesitate in making split-second decisions. Thus, "this case is brimming with sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy." Rodriguez, 899 F.3d at 753 (9th Cir., 2018) (Smith, J., dissenting).

The extraterritoriality analysis replicated the historical presumption against applying federal statutes beyond U.S. borders. One example is the all-purpose civil rights statute applicable to the case, 42 U.S.C. Section 1983. The Supreme Court articulated the need for caution, by declining to "extend a judge-made rule ... beyond our borders."

Furthermore, the Federal Tort Claims statute excludes "[a]ny claim [against a federal officer] arising in a foreign country." 28 U.S.C. Section 2680(k). Congress thereby spoke in a way that would appear to require jurists to dismiss the lawsuits in this "new" cross-border context -- where the definitive harm occurred (just) beyond the U.S. border. The resolution of such claims should instead be facilitated by diplomatic means.

The Hernandez dissent disagreed on all fronts. Specifically, "plaintiffs lack recourse to alternative remedies, and no 'special factors' counsel against a Bivens remedy. Neither U.S. foreign policy nor national security is in fact endangered by the litigation. Moreover, concerns attending the application of our law to conduct occurring abroad are not involved, for plaintiffs seek the application of U.S. law to conduct occurring inside our borders." In other words, the bullet was fired in the U.S., and struck just outside -- in the culvert's no-man's land lacking any border demarcation.

But as the majority ultimately concluded: "In sum, this case features multiple factors that counsel hesitation about extending Bivens, but they can all be condensed to one concern -- respect for the separation of powers. ... Foreign policy and national security decisions are 'delicate, complex, and involve large elements of prophecy' for which 'the Judiciary has neither aptitude, facilities[,] nor responsibility.' "

The Hernandez family is thus left with the reality that their son's death will not be remedied by the courts. Further, Congress has taken no action to respond to the multiple opinions in the last half-century, while courts have struggled to second-guess Congress about the availability of a judicial remedy. The Hernandez family now has only cross-border executive branch diplomacy in its corner, as has been the case since the death of their son 10 years ago. The parents may thus be asking themselves: How would the U.S. would respond, if a Mexican border patrol officer were to fire a fatal shot into any U.S. border city? 