Jesus Hernandez v. USA
757 F.3d 249
5th Cir.2014Background
- Hernandez, a Mexican national, was shot and killed by a U.S. Border Patrol agent while Hernandez stood in Mexico, near the Paso del Norte Bridge area.
- Appellants (Hernandez's parents) sued the United States, Agent Mesa, and supervisors under FTCA, Fourth/Fifth Amendment theories, ATS, and a Bivens action; later narrowed to Bivens against Mesa and related claims.
- District court substituted the United States as the FTCA defendant under the Westfall Act and dismissed FTCA and ATS claims; dismissals extended to Bivens claims against Mesa’s supervisors.
- Appellants amended to add four supervising defendants; district court later granted summary judgment for Cordero and Manjarrez for lack of personal involvement.
- Attorney filings and appeals consolidated; the court analyzes extraterritorial application of constitutional rights and remedies with Boumediene/Verdugo-Urquidez as guiding authorities.
- The court ultimately holds Fourth Amendment does not apply to the injury occurring in Mexico, but allows a Fifth Amendment due process claim against Mesa and a limited Bivens remedy for that context.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FTCA foreign-country barrier applies | Hernandez's injury occurred in Mexico; FTCA should apply | Sosa forecloses claims arising in foreign country | FTCA foreign-country exception bars FTCA claims |
| ATS creates jurisdiction or waives immunity | ATS supports international-law claims | ATS is jurisdictional only and does not waive immunity | ATS claim properly dismissed for lack of independent consent by United States |
| Fourth Amendment extraterritorial reach | Hernandez injured abroad but within U.S. jurisdiction; Fourth applies | Boumediene/Verdugo-Urquidez limit reach abroad | Fourth Amendment does not apply to this extraterritorial shooting situation |
| Fifth Amendment due process and Bivens extension | Noncitizen injured abroad can invoke Fifth Amendment and a Bivens remedy | No extraterritorial application; no Bivens remedy in this context | Fifth Amendment applies; Bivens remedy extended to this specific extraterritorial context; remand for further proceedings; supervisors not liable |
| Supervisors’ personal involvement | Supervisors created/maintained policies and failed to train; personally responsible | No personal involvement shown | Summary judgment affirmed for Cordero and Manjarrez; no liability shown |
Key Cases Cited
- Sosa v. Alvarez-Machain, 542 U.S. 692 (U.S. 2004) (FTCA foreign-country exception analyzed; scope of waiver)
- Boumediene v. Bush, 553 U.S. 723 (U.S. 2008) (extraterritoriality factors; functional approach to reach of Constitution)
- Verdugo-Urquidez, 494 U.S. 259 (U.S. 1990) (Fourth Amendment extraterritorial reach; sufficient connections concept)
- Graham v. Connor, 490 U.S. 386 (U.S. 1989) (excessive force analysis under Fourth Amendment when applicable)
- Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (special factors in extending Bivens; immigration context)
- Malesko v. Vill. of Skokie, 534 U.S. 61 (U.S. 2001) (limits on extending Bivens to new contexts)
- Lynch v. Cannatella, 810 F.2d 1363 (5th Cir. 1987) (aliens’ rights against border officials; extraterritorial considerations)
- Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (U.S. 1971) (recognition of damaages remedy against federal officers)