Hernandez v. Mesa
140 S. Ct. 735
| SCOTUS | 2020Background
- A 15‑year‑old Mexican national, Sergio Hernández Güereca, was shot by U.S. Border Patrol Agent Jesús Mesa while the boy was in a concrete culvert that straddles the El Paso–Ciudad Juárez border; the fatal wound struck Hernández on the Mexican side.
- DOJ investigated, declined to prosecute Mesa, and the U.S. refused Mexico’s extradition request; Mexico and the parents sought redress through diplomacy and litigation.
- Hernández’s parents sued Mesa in federal court under Bivens, alleging Fourth and Fifth Amendment violations for the use of deadly force.
- The district court dismissed; the Fifth Circuit (en banc) affirmed, holding the claim arises in a new Bivens context and that special factors (foreign relations, national security, extraterritoriality, and Congress’s refusal to authorize extraterritorial remedies) counsel against extending Bivens.
- The Supreme Court affirmed, refusing to extend Bivens to cross‑border shootings because such claims are a markedly new context implicating foreign relations and national security and because Congress has repeatedly declined to authorize similar extraterritorial damages remedies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Bivens damages remedy extends to a cross‑border shooting by a U.S. agent | Hernandez: Bivens applies to unlawful seizures by federal officers and should cover this use of excessive force even if the bullet landed abroad | U.S./Mesa: Extending Bivens here would create a new context with foreign‑relations and national‑security consequences; Congress has not authorized such a remedy | No — the Court refused to extend Bivens to cross‑border shootings |
| Whether the incident presents a "new context" for Bivens under Abbasi | Hernandez: This is a familiar law‑enforcement excessive‑force claim akin to Bivens | U.S./Mesa: The cross‑border element, foreign sovereign interests, and security implications make the context meaningfully different | Yes — the Court found the context new |
| Whether foreign relations and national‑security concerns are special factors counseling hesitation | Hernandez: This is an individual officer’s misconduct, not a policy decision; judicial adjudication would not disrupt diplomacy or security | U.S./Mesa: Suits risk interfering with Executive foreign‑policy prerogatives and border‑security operations and could create diplomatic friction | Special factors weigh against recognizing a Bivens remedy here |
| Whether congressional action (or its absence) precludes a judicially implied remedy | Hernandez: No adequate alternative remedies exist; Bivens is needed for deterrence and compensation | U.S./Mesa: Congress has shown a pattern of declining to authorize extraterritorial damages (FTCA §2680(k), limits in §1983 analogues, statutes providing executive settlement mechanisms), so courts should not imply a remedy | Congressional practice and available statutory schemes counsel that courts should not create a new Bivens remedy |
Key Cases Cited
- Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) (recognized an implied damages remedy for an unconstitutional search and arrest)
- Ziglar v. Abbasi, 582 U.S. (2017) (articulated the two‑step test for extending Bivens and emphasized "special factors"/separation‑of‑powers caution)
- Davis v. Passman, 442 U.S. 228 (1979) (extended Bivens to a Fifth Amendment sex‑discrimination claim)
- Carlson v. Green, 446 U.S. 14 (1980) (extended Bivens under the Eighth Amendment for inadequate medical care in prison)
- Jesner v. Arab Bank, PLC, 584 U.S. (2018) (expressed reluctance to recognize causes of action not created by Congress in foreign‑affairs contexts)
- Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013) (presumption against extraterritorial application of U.S. causes of action)
- Alexander v. Sandoval, 532 U.S. 275 (2001) (private rights of action under federal law must be created by Congress)
- Malesko, Correctional Servs. Corp. v. Malesko, 534 U.S. 61 (2001) (declined to extend Bivens to a private corporation operating a prison)
- Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) (abolished federal general common law, limiting courts’ authority to fashion new federal causes of action)
- Westfall v. Erwin (discussed via statutory response and leading to the Westfall Act), and related FTCA jurisprudence informing that Congress limited remedies for torts committed abroad (statutory background cited in opinion)