Bivens action

Hernandez v. Mesa

Issues

Absent a statutory provision and alternative legal remedy, can private individuals seek damages against federal officers whose conduct allegedly violated the Fourth and Fifth Amendments?

This case asks the Supreme Court to determine whether damages claims filed by private individuals against federal officers merit a judicial tort remedy, absent any other legal remedies. The parents of Sergio Adrian Hernandez Guereca—who was fatally shot on Mexican soil by a U.S. officer on U.S. soil—sued the U.S. officer, other unknown federal employees, and the United States. They argue that under Bivens, their damages claims should proceed despite the lack of statutory provisions because the essence of their claims is the same as Bivens and because no other legal remedy is available. Jesus Mesa, Jr., the Border Patrol agent who shot and killed Sergio, contends that the parents’ claims should be dismissed because the claims fall outside of Bivens given the “new context” they present and the “special factors” that warrant the Court’s caution in recognizing a Bivens action in this case. The outcome of this case has heavy implications for national security, separation of powers, and accountability of agents employing deadly force in foreign territories.

Questions as Framed for the Court by the Parties

Whether, when the plaintiffs plausibly allege that a rogue federal law-enforcement officer violated clearly established Fourth and Fifth amendment rights for which there is no alternative legal remedy, the federal courts can and should recognize a damage claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics.

On June 7, 2010, Sergio Adrian Hernandez Guereca (“Sergio”), a 15-year-old Mexican citizen, was playing a game with his friends at a cement culvert on the border between Ciudad Juarez, Mexico and El Paso, Texas. Hernandez v. United States at 255. The game involved running up the culvert to touch the fence that separates Mexico and the United States and then running back down. Id. Agent Jesus Mesa, Jr.

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Additional Resources

•     Robert Barnes: Supreme Court to Decide Whether Families of Mexican Teens Killed by U.S. Border Agents Can Sue, The Washington Post (May 28, 2019).

•     Adam Liptak: Justices to Hear Case of U.S. Agent’s Shooting of Teenager Across the Mexican Border, The New York Times (May 28, 2019).

•     Nick Sibilla: Sleeper Supreme Court Case Could Make Suing Rogue Federal Agents Almost Impossible, Forbes (Sept. 27, 2019).

•     Andrew Kent: What Happened in Hernandez v. Mesa?, LawFare (June 27, 2017).

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Wood v. Moss

Issues

  1. Should Secret Service agents receive qualified immunity from claims that they violated the First Amendment rights of anti-Bush demonstrators, where the agents moved anti-Bush, but not pro-Bush demonstrators, to protect the President?  
  2. Did anti-Bush demonstrators who were moved away from the President, adequately plead viewpoint discrimination if Secret Service agents had security reasons to move them?

In 2004, President Bush made an unannounced campaign stop at the Jacksonville Inn in Jacksonville, Oregon. Expecting the President to appear only at the nearby Honeymoon Cottage, pro-Bush and anti-Bush demonstrators arranged lawful demonstrations in the area. When the President changed his plans, Secret Service agents ordered local law enforcement to clear the area where the anti-Bush protestors were demonstrating. The anti-Bush demonstrators sued for viewpoint discrimination under the First Amendment. Secret Service agents Wood and Savage argue that the Ninth Circuit’s generalization of the protestors’ constitutional rights incorrectly deprived them of qualified immunity. Wood and Savage also argue that protestors failed to adequately plead a plausible claim because the complaint shows that the agents had a permissible security motive. Respondent Moss argues that the Ninth Circuit properly denied Wood and Savage qualified immunity because the agents moved the protesters because of the content of their speech. Moss also argues that he adequately pleaded viewpoint discrimination by laying out facts that plausibly establish the agents’ discriminatory motive. This case will determine whether law enforcement agents are able to account for demonstrators’ viewpoints when protecting public officials and the general public during political events. Additionally, this case will help define the parameters of the Court’s previous Iqbal ruling. 

Questions as Framed for the Court by the Parties

  1. Whether the court of appeals erred in denying qualified immunity to Secret Service agents protecting the President by evaluating the claim of viewpoint discrimination at a high level of generality and concluding that pro- and anti-Bush demonstrators needed to be positioned an equal distance from the President while he was dining on the outdoor patio and then while he was travelling by motorcade.
  2. Whether respondents have adequately pleaded viewpoint discrimination in violation of the First Amendment when no factual allegations support their claim of discriminatory motive and there was an obvious security-based rationale for moving the nearby anti-Bush group and not the farther-away pro-Bush group.

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Facts

During his 2004 presidential campaign, President Bush made an unannounced stop at the Jacksonville Inn in Jacksonville, Oregon. See Moss v. U.S. Secret Service, 711 F.3d 941, 948 (9th Cir. 2012). The President was scheduled to appear at the nearby Honeymoon Cottage, so both pro-Bush and anti-Bush groups were prepared to demonstrate in the area.

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