Should the availability of constitutional rights for aliens not on United States soil turn on practical factors beyond the formal geographic location of international borders and, if so, may an alien injured on foreign territory by an officer standing in the United States bring a Bivens claim? Additionally, may a federal officer’s conduct be shielded by qualified immunity based on facts unknown to the officer at the time of his conduct?
In this case, the Supreme Court will decide whether the Constitution allows parents of a Mexican citizen with no significant ties to the United States to sue a U.S. Border Patrol Agent who shot and killed their son on the Mexican side of the culvert separating the two countries while the agent was standing in the United States. The parents of the deceased teen argue that the Court should extend extraterritorial jurisdiction for practical reasons, that the border patrol agent should not be shielded by qualified immunity because he did not know the facts necessary to justify his force at the time he used it, and that the Court should allow them to bring a Bivens claim because it is the only available remedy. The border patrol agent counters that the Court should not extend jurisdiction to an area not under U.S. control, that he should be shielded by qualified immunity because a reasonable officer in his circumstances could have inferred the facts necessary to justify his use of force, and that the family is not entitled to bring a Bivens claim because the rights they claim were not clearly established at the time he acted. To the parents, defeat would foreclose any possibility to recover; to the Government, defeat would obstruct its foreign operations by implicating Fourth Amendment concerns in international security operations.
Questions as Framed for the Court by the Parties
1. Does a formalist or functionalist analysis govern?
2. May qualified immunity be granted or denied based on facts—such as the victim’s legal status—unknown to the officer at the time of the incident?
3. May the claim in this case be asserted under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971)?
On June 7, 2010, a group of Mexican teenagers were playing below a bridge leading to the United States border—in a channel that separated Juarez, Mexico and El Paso, Texas. The game involved running up the slope towards the United States, touching the barbed-wire fence, and running back down. One of the kids playing this game was fifteen-year-old Sergio Adrian Hernández Guereca (“Sergio”). United States Border Patrol Agent Jesus Mesa, Jr. (“Mesa”) witnessed their pastime and moved to apprehend the kids. While Mesa was arresting one, Sergio ran sixty feet back into Mexico, stopping by one of the pillars that supported the bridge to United States. Mesa drew his firearm and fired at Sergio twice, hitting him in the face and killing him. Mesa denies this narrative and maintains that Sergio was hurling rocks at him. The United States decided not to prosecute Mesa and refused Mexico’s extradition request.
Sergio’s parents, Jesus C. Hernández (“Hernández”) and Maria Guadalupe Bentacour (“Bentacour”), decided to sue Mesa, his supervisors, and the United States in federal district court for violating Sergio’s Fourth and Fifth Amendment rights guaranteed by the U.S. Constitution. Mesa and the United States filed a motion to dismiss the claims against them. The district granted their motions, holding: first, the claims against the United States were barred by sovereign immunity; second, Sergio had no Fourth Amendment rights because he was “an alien with no voluntary ties to the United States”; and third, the Fifth Amendment claim was invalid because claims of excessive force must be filed under the Fourth Amendment. Mesa’s supervisors then filed a motion to dismiss or for summary judgment. Hernández and Bentacour voluntarily dismissed some of their claims and the court found in favor of the supervisors on the remaining claims. Hernández and Bentacour appealed each of these adverse rulings to a Fifth Circuit panel.
A divided panel agreed with the district court that the claims against the United States and Mesa’s supervisors should have been dismissed, but reversed as to the claims against Mesa. The panel held that Hernández and Bentacour could allege a violation of Sergio’s Fifth Amendment Due Process right, but also held that Sergio lacked Fourth Amendment rights. Additionally, the panel dismissed Mesa’s argument that he was entitled to qualified immunity.
The Fifth Circuit reheard the matter en banc and decided to dismiss the Fifth Amendment Due Process claim, holding that Mesa was entitled to qualified immunity. The court held that Mesa was entitled to qualified immunity because, at the time he shot Sergio, there was no clearly established Fifth Amendment prohibition against using deadly force on an alien who had no voluntary connection to the United States and was not in the United States. Thereafter, Hernández and Bentacour petitioned the Supreme Court for a writ of certiorari, which the Court granted.
SHOULD CONSTITUTIONAL PROTECTIONS TURN ON FACTORS BEYOND THE OFFICIAL, GEOGRAPHICAL LIMIT OF US SOIL?
Hernández and Bentacour argue that the Supreme Court should extend constitutional protections to a Mexican national shot just over the United States border by a border agent standing on U.S. soil. They contend that the Court should follow Boumediene v. Bush, 553 U.S. 723 (2008), to hold that the decision whether to apply constitutional principles in an extraterritorial context depends on practical, objective considerations, rather than on a strict rule that constitutional protections cease to apply across the United States’ formal borders. Further, Hernández and Bentacour maintain that a majority of the Supreme Court has never held that Fourth Amendment protections are strictly inapplicable to foreign nationals. Using practical considerations, they argue that the Supreme Court should apply Fourth Amendment protections to foreign nationals killed in close-range, cross-border shootings such as the shooting that killed their son. Hernández and Bentacour note that their case for Fourth Amendment protections is particularly strong considering that their son was a non-threatening teen and a resident of a tightly-knit cross-border community, that the U.S. border agents exercised complete control over the area where their son was shot, and that the agent shot their son only a few feet away from the border. Hernández and Bentacour also maintain that applying Fourth Amendment protections would improve relations with Mexico, provide legal accountability for border agents who use force against individuals on Mexican soil, and ensure that outcomes of use-of-force cases did not depend on an individual’s proximity to the border, all while protecting the fundamental right to life. Hernández and Bentacour argue that declining to apply Fourth Amendment protections in this context would create the anomalous results the Boumediene decision warns of: guaranteeing cross-border use-of-force protection to all but foreigners who lack a significant voluntary connection to the United States.
Mesa counters that Fourth Amendment protections are inapplicable to this case, because Sergio was shot in an area outside the United States’ territory and control. He notes that past Supreme Court cases refused to extend Fourth Amendment protections to foreign nationals abroad who lacked substantial ties to the United States. Mesa further contends that the Boumediene decision is inapplicable in this context because the case dealt specifically with whether the Suspension Clause applied to detainees of Guantanamo Bay—an area the United States controls by treaty, and not whether Fourth Amendment in general applied to all foreigners. Mesa argues that the United States does not have complete control beyond the Mexican border and, in fact, cannot even legally set foot on that land for a law enforcement purpose. He also maintains that the border towns no longer share the close, friendly relationship that Hernández and Bentacour claim. Further, Mesa argues that the Supreme Court should not interpret U.S. jurisdiction over the cross-border area to include unofficial jurisdiction that the United States could subjectively claim or disclaim. A periodic showing of authority in a cross-border context is not enough, according to Mesa, to make United States control over the area near the Mexican-United States border sufficiently analogous to its control over Guantanamo Bay.
IS A BORDER PATROL AGENT ENTITLED TO QUALIFIED IMMUNITY FOR USE OF FORCE WHEN THE POTENTIAL LEGAL PROTECTIONS FOR HIS ACTIONS HINGE ON FACTS HE WAS NOT AWARE OF AT THE TIME HE USED FORCE?
Hernández and Bentacour maintain that Mesa is not entitled to qualified immunity because, when he pulled the trigger to shoot their son, he had no way of knowing for certain that their son was a foreigner who did not have significant voluntary connections to the United States, or was not standing on United States territory. Further, they state that it would not have been reasonable for Mesa to attempt to infer these facts because hundreds of thousands of children living in Mexico have U.S. citizenship and the exact international border line is often uncertain. Without clear information to establish Sergio’s ties to the United States and his exact location relative to the border, Hernández and Bentacour argue that a reasonable officer would have known that it was unreasonable to use deadly force against him. Because qualified immunity doctrine is designed to protect only those officers who acted reasonably given the facts available to them and the clearly established state of the law, Hernández and Bentacour contend that granting Mesa qualified immunity based on facts he learned after the shooting would undercut the purpose of qualified immunity doctrine. They note that granting qualified immunity to Mesa would create a dangerous doctrine under which officers who act reasonably in the moment could later face liability if additional, adverse facts are discovered.
Mesa does not directly refute the argument that qualified immunity should be decided based on information an officer knew at the time he acted. Rather, he responds that a reasonable agent in his circumstances could have inferred the facts necessary to justify his use of force. Mesa asserts that qualified immunity requires an objective evaluation of whether an officer’s actions were reasonable given the facts and circumstances he was aware of when he took action. He maintains that a reasonable officer could have decided, based on the teens’ running up to the border fence and hurling rocks at him in the way alien smugglers would, that the teens were attempting an illegal entry or engaging in illegal behavior and that use of force was justified.
IS A BIVENS CLAIM APPROPRIATE IN THIS CASE?
Hernández and Bentacour argue that federal courts can hear Bivens claims where no other effective legal option is available to the injured party, so long as there are no “special factors” that would caution against hearing the case. They state that a Bivens claim is the proper and only remedy available to them. Hernández and Bentacour maintain that waiting for Congress’ blessing to allow a Bivens claim in their case would betray the judiciary’s duty to protect constitutional interests against encroachment from other branches of the government. They note that there is no potential for a successful suit under the Federal Tort Claims Act (“FTCA”) because the FTCA does not allow recovery for injuries that occur outside the United States. Further, they state that the possibility of a criminal prosecution in the United States is not reason to prevent a Bivens claim. Hernández and Bentacour also argue that seeking a remedy through the Mexican civil or criminal system would be futile because the United States would not enforce a Mexican civil damages judgment against Mesa and the United States refuses to extradite Mesa to face criminal charges in Mexico. Hernández and Bentacour contend that there are no “special factors,” such as national security or international diplomacy concerns, in this case that would suggest it would be prudent to refuse a Bivens remedy. . In fact, Hernández and Bentacour argue that international diplomacy and extraterritoriality concerns would be best served by allowing them to bring a Bivens claim.
Mesa responds that a successful Bivens claim requires both a constitutional rights violation and proof that the violated right was “clearly established” when the violation occurred. He maintains that a Bivens claim is inappropriate in this case because Sergio did not have any clearly established Fourth Amendment rights when Mesa used force against him. Mesa notes that the very fact that various federal judges have decided this case differently indicates that the right, if it exists, was not clearly established at the time he shot Sergio. Further, Mesa states that Hernández and Bentacour are not entitled to Fourth Amendment protections for the force used against their son, because Sergio was not on United States soil and did not have a significant voluntary connection to the United States when he was shot. He argues that the Supreme Court should not extend a Bivens remedy after the fact, regardless of whether Sergio’s family has another federal avenue to recover for their injuries.
GRANT AN ALIEN RECOMPENSE AT TREASURY’S EXPENSE
The American Civil Liberties Union (“ACLU”), in support of Hernández and Bentacour, cautions the Court not deny an individual relief for violation of a Constitutional right. According to the ACLU, should the Court deny relief in this case, only the Executive Branch could enforce Constitutional violations abroad, thus allowing the government to escape liability at will. The Constitutional Accountability Center (“CAC”) agrees with the ACLU’s assessment, warning the Court against granting the government an unchecked power to “switch the Constitution on or off.” Additionally, the ACLU, joined by the American Immigration Council, Mexican Jurists, and law professors, argues that denying recompense would leave many injured aliens without any remedy.
The APA Watch, however, argues that Hernández and Bentacour do have an alternative way to recover. Per APA Watch, Hernández and Bentacour could simply sue Mesa in Texas for violating Mexican Law. Nonetheless, even if recovery was unavailable, the Criminal Justice Legal Foundation (“CJLF”) and the United States urge the Court not allow Hernández and Bentacour to recover. According to the CJLF and the United States, Congress did not authorize aliens to recover; therefore, if the Court were to rule otherwise, the Court would be acting contrary to the will of Congress. As Mesa explains, if the Court were to allow Hernández and Bentacour to recover, the Court would subject the United States to uncertain degree of liability and innumerable lawsuits. Mesa asserts that a holding for Hernández and Bentacour would allow civilians abroad to sue the U.S. armed forces for using infrared thermography. As the CJLF asserted, establishing such novel remedy is properly the role of Congress, not the Court.
DETER ILLEGAL ACTIVITY BUT SUBVERT UNITED STATES’ POLICY OBJECTIVES
Arguing for Hernández and Bentacour, a group of former police chiefs and the Border Action Network caution that should the Court not permit this suit, the Border Patrol would be encouraged to racially profile suspects and be emboldened to use deadly force against aliens. In fact, the former police chiefs and numerous other amici—such as former officials of U.S. Customs and Border Protection Agency, Restore the Fourth, Inc., Constitutional Law Scholars, Amnesty International, and the American Immigration Council—argue that imposing liability on Mesa will have a positive effect: It will deter other federal agents from using excessive force in violation of their training, the manual, laws of the States, the Constitution, and international human rights regulations. Two of these amici, a group of legal historians and Restore the Fourth, Inc., argue that deterring excessive force is necessary to prevent the United States from becoming a tyranny.
Mesa asserts that at stake is the ability of the United States to pursue its policy objectives abroad. Mesa cautions that should aliens be permitted to sue, the United States would not be able to carry out drone strikes and other searches and seizures in conflict zones without contemplating ruinous liability. Similarly, the APA Watch asserts that imposing liability on Border Patrol Agents would hinder the Border Patrol’s ability to cooperate with Mexican counterparts. For a similar reason, the United States asserts that the doctrine of qualified immunity is appropriate in this case. According to the United States, imposing liability for Fourth Amendment violations may deter capable individuals from seeking public service and distract current officials from efficiently effectuating their duties.
- Charles Doyle, Cong. Research Serv., 94-166, Extraterritorial Application of American Criminal Law (2010).
- Andrew Kent, Thoughts on the Briefing to Date in Hernández v. Mesa – The Cross-border Shooting Case, Lawfare (Dec. 27, 2016).
- Adam Liptak, An Agent Shot a Boy Across the U.S. Border. Can His Parents Sue?, New York Times (Oct. 17, 2016).