Hernández v. Mesa
589 U.S. 93
| SCOTUS | 2020Background
- Border Patrol Agent Jesus Mesa (on U.S. soil) fired at and killed 15‑year‑old Mexican national Sergio Hernández, who was on Mexican soil after running back across a culvert separating El Paso and Ciudad Juárez.
- DOJ investigated, declined federal prosecution; Mexico requested extradition (denied) and remained dissatisfied.
- Hernández’s parents sued Mesa in federal court under Bivens, alleging Fourth and Fifth Amendment violations; the District Court dismissed; the Fifth Circuit affirmed en banc; this Court remanded for consideration under Ziglar v. Abbasi; the Fifth Circuit again refused to recognize a Bivens remedy; this Court affirmed.
- Central legal question: whether Bivens should be extended to permit a damages remedy for a cross‑border shooting by a federal agent standing in the United States that causes injury abroad.
- Supreme Court held Bivens does not extend to this new context because multiple special factors—foreign relations, national‑security/border‑security concerns, extraterritoriality, and Congress’s practice of declining extraterritorial damages—counsel hesitation and defer remedy creation to Congress.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bivens extends to a cross‑border shooting | Bivens and its progeny authorize damages for constitutional violations by federal officers; same constitutional provisions are invoked (Fourth/Fifth) so remedy should be available | Extending Bivens to cross‑border shooting intrudes on foreign policy/national security and raises extraterritorial concerns; Congress has not authorized such remedies | Refused to extend Bivens; cross‑border shooting is a new context and extension is barred by special‑factors analysis |
| Whether the claim arises in a "new context" for Bivens | Not new because claims invoke same amendments recognized in prior Bivens decisions | The cross‑border setting is meaningfully different (international implications, risk of judicial intrusion into foreign affairs) | Yes — the Court held the context is new because it meaningfully differs from Bivens/Davis/Carlson |
| Whether "special factors" counsel hesitation (foreign relations/national security) | Judicial remedies for officer misconduct are necessary deterrents; individual suits don’t displace diplomatic channels | Cross‑border shootings implicate foreign relations and the Executive’s lead in foreign policy; risk of impairing border security and national‑security policymaking | Multiple special factors counseled hesitation: foreign affairs, national security/border policing, and separation‑of‑powers concerns |
| Whether congressional silence/legislative alternatives affect Bivens extension | Absence of a remedy should not bar judicially‑implied relief where constitutional violations occurred | Congress has repeatedly limited or declined extraterritorial damages (FTCA §2680(k), §1983 scope, Torture Victim Protection Act, executive compensation schemes) — courts should not create such remedies | Congressional practice of declining extraterritorial damages and providing alternative executive‑administered relief supports denying a judicially‑created remedy; remedy should be left to Congress |
Key Cases Cited
- Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) (recognized implied damages remedy for Fourth Amendment violation)
- Ziglar v. Abbasi, 582 U.S. _ (2017) (articulated two‑step test for extending Bivens: new‑context inquiry and special factors counseling hesitation)
- Davis v. Passman, 442 U.S. 228 (1979) (extended Bivens to a Fifth Amendment employment discrimination claim)
- Carlson v. Green, 446 U.S. 14 (1980) (extended Bivens to an Eighth Amendment inadequate‑medical‑care claim)
- Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001) (refused to extend Bivens to a suit against a private prison firm)
- Haig v. Agee, 453 U.S. 280 (1981) (foreign affairs committed primarily to political branches)
- Medellín v. Texas, 552 U.S. 491 (2008) (Executive has lead role in foreign policy)
- Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013) (presumption against extraterritorial application of U.S. statutes)
- Jesner v. Arab Bank, PLC, 584 U.S. _ (2018) (expressed caution about courts creating causes of action with foreign‑affairs implications)
- Alexander v. Sandoval, 532 U.S. 275 (2001) (private rights of action to enforce federal law must be created by Congress)