Hernandez v. Mesa, 198 L. Ed. 2d 625

Background

On June 7, 2010, Border Patrol Agent Jesus Mesa, Jr., standing on U.S. soil, fired across a cement culvert that marks the U.S.–Mexico boundary and killed 15‑year‑old Mexican national Sergio Adrián Hernández Güereca, who was on Mexican soil. Petitioners allege Hernández was unarmed and nonthreatening.
DOJ investigated, declined criminal charges, and concluded the agent’s actions did not violate CBP policy and that federal civil‑rights jurisdiction was lacking because Hernández was not on U.S. territory.
Hernández’s parents sued under Bivens, alleging Fourth and Fifth Amendment violations; the District Court dismissed the claims.
A Fifth Circuit panel found no Fourth Amendment protection but held a Fifth Amendment violation and denied qualified immunity; the en banc Fifth Circuit unanimously affirmed dismissal, finding no Fourth Amendment rights and that Mesa had qualified immunity on any Fifth Amendment claim.
The Supreme Court granted certiorari, vacated the Fifth Circuit judgment, and remanded for further proceedings—declining to decide in the first instance whether a Bivens remedy is available and whether the Fourth Amendment applies; it also held the Fifth Circuit erred by basing qualified immunity on facts unknown to the officer at the time of the shooting.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Availability of a Bivens damages remedy for cross‑border lethal force	Bivens remedy should be available for constitutional violations by a federal agent, permitting damages.	Bivens should not be extended to this new context because special factors counsel hesitation; such policy questions belong to Congress or lower courts to consider first.	Remanded: Supreme Court declined to decide Bivens question and directed the court of appeals to address it in the first instance.
Fourth Amendment applicability extraterritorially	The Fourth Amendment applies here despite the victim’s presence on Mexican soil because the agent acted from U.S. territory in a jointly administered border culvert with special features.	Hernández lacked Fourth Amendment rights because he was a Mexican national with no significant voluntary connection to the U.S. and was on Mexican soil.	Remanded: Supreme Court declined to resolve the Fourth Amendment question in the first instance, noting its sensitivity and Abbasi guidance.
Fifth Amendment excessive‑force claim and qualified immunity	Plaintiffs: officer violated Hernández’s Fifth Amendment rights and is not immune.	Defendant: officer entitled to qualified immunity because law did not clearly prohibit using force against someone off U.S. soil; alternatively, claim should be assessed under the Fourth Amendment.	Vacated and remanded: Supreme Court found en banc Fifth Circuit erred to grant qualified immunity based on facts (nationality/connection) unknown to the officer at the time; left further qualified immunity and merits questions to the court of appeals.
Proper scope of qualified immunity inquiry	Plaintiffs: immunity should not shield conduct that a reasonable officer would know unlawful.	Government: analysis should consider the ultimate facts (e.g., victim’s nationality/connections) even if unknown to the officer at the time.	Held: Qualified immunity analysis is limited to facts knowable to the officer at the time; post‑hoc facts are irrelevant. Remanded for further consideration.

Key Cases Cited

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (recognition of implied damages action against federal officers for constitutional violations)
United States v. Verdugo‑Urquidez, 494 U.S. 259 (limitations on constitutional protections for non‑resident aliens without significant voluntary connection)
Carlson v. Green, 446 U.S. 14 (special‑factors/Congressional‑policy consideration in Bivens analysis)
Correctional Servs. Corp. v. Malesko, 534 U.S. 61 (limits on Bivens and availability of damages remedies)
Saucier v. Katz, 533 U.S. 194 (qualified immunity framework focusing on whether conduct violated clearly established rights)
Pearson v. Callahan, 555 U.S. 223 (qualified immunity and sequencing of constitutional/clearly‑established‑law inquiries)
Tennessee v. Garner, 471 U.S. 1 (use of deadly force and Fourth Amendment excessive‑force principles)
Boumediene v. Bush, 553 U.S. 723 (extraterritorial reach of constitutional protections turns on practical factors, not formal sovereignty)