Hernandez v. Mesa
885 F.3d 811
5th Cir.2018Background
- Sergio Hernández, a 15‑year‑old Mexican national, was shot and killed by U.S. Border Patrol Agent Mesa while Hernández stood on the Mexican side of a border culvert; Mesa was on the U.S. side.
- Plaintiffs (Hernández's parents) sued under Bivens for constitutional violations (Fourth and Fifth Amendments), seeking damages against Agent Mesa.
- The case raised whether Bivens extends extraterritorially to a foreign national injured abroad by a U.S. federal agent acting from U.S. soil.
- The Supreme Court directed the Fifth Circuit to consider Abbasi and related precedent in deciding whether a Bivens remedy is available.
- The en banc majority concluded Bivens should not be extended to this transnational context (special factors counseled hesitation); several judges dissented, arguing this is a routine law‑enforcement excessive‑force claim suitable for Bivens.
- Separate qualified‑immunity analysis: Judge Dennis (concurring in judgment) concluded Mesa is entitled to qualified immunity because extraterritorial application of the Fourth Amendment was not clearly established at the time.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bivens extends to a cross‑border shooting of a foreign national by a U.S. agent | Bivens applies; this is an individual law‑enforcement excessive‑force case and fits the "common and recurrent sphere" for Bivens | Transnational nature creates a new context; special factors (foreign affairs, national security, extraterritoriality, congressional silence) counsel against extending Bivens | Majority: No Bivens extension in this transnational context (special factors counsel hesitation); concurrence/dissent disagree on that outcome |
| Whether the Fifth Amendment applies to noncitizens injured abroad by U.S. agents | Hernandez entitled to Fifth Amendment protections where U.S. agent’s arbitrary conduct caused injury | Court majority questioned extraterritorial reach; not clearly established | Not resolved for remedy; some judges argued Fifth Amendment protections should apply, but remedy denied under Bivens analysis |
| Whether the Fourth Amendment was clearly established extraterritorially for qualified immunity | Plaintiffs: obvious unlawfulness (cold‑blooded murder) defeats immunity | Mesa: extraterritorial application of Fourth Amendment was not clearly established at the time | Concurring judge (Dennis): Qualified immunity bars suit because right was not clearly established |
| Whether alternative remedies (FTCA, ATS, criminal prosecution, extradition) preclude Bivens | Plaintiffs: no adequate alternative remedies available; Bivens is the only meaningful remedy | Government: congressional silence and existing statutory schemes counsel hesitation to create damages remedy | Majority relied on special‑factor framework; Bivens not extended; dissent argued lack of statutory remedy favors recognizing Bivens |
Key Cases Cited
- Boumediene v. Bush, 553 U.S. 723 (2008) (extraterritorial application of habeas rights informs analysis of constitutional reach)
- Mullenix v. Luna, 136 S. Ct. 305 (2015) (qualified immunity shields officials unless right was clearly established)
- Davis v. Scherer, 468 U.S. 183 (1984) (plaintiff must show rights were clearly established to overcome qualified immunity)
- Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (special‑factors test central to whether Bivens may be extended into new contexts)
- Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) (creating implied damages remedy for certain Fourth Amendment violations)
- Graham v. Connor, 490 U.S. 386 (1989) (excessive force standard; split‑second decision context relevant to qualified immunity)
- Tennessee v. Garner, 471 U.S. 1 (1985) (limitations on use of deadly force)