On May 28th, the Supreme Court agreed to hear for the second time a case which concerns whether the parents of a teenager killed by an American agent shooting across the Mexican border may sue that agent in federal court. The case originated from an incident in 2010, in which Jesus Mesa Jr., a U.S. border guard, shot 15-year old Sergio Hernandez Guereca in the head as he allegedly threw rocks at border guards. A January 2019 piece in the IELR goes into detail regarding the history of the case, noting that in 2015, “a divided panel of the Fifth Circuit declined to dismiss the civil action against Mesa, but the Fifth Circuit en banc reversed the panel, and ruled that because the boy was standing on the Mexican side of the border, his family could not sue. However, the US Supreme Court accepted certiorari, and remanded back to the Fifth Circuit. On March 20, 2018, the Fifth Circuit once again ruled against the decedent’s family and ordered the case dismissed. On June 15, 2018, the Hernandez family petitioned again for certiorari.” While the Supreme Court did not issue a definitive ruling before remanding the case back to the Fifth Circuit, it is likely to do so after it hears arguments in the judicial term beginning in October.
It seems likely that the ruling in this case will hinge largely on the court’s interpretation of the relationship between this case and the 1971 decision in Bivens v. Six Unknown Named Agents, in which the Supreme Court ruled that congressional authorization is not always needed in suits against federal officials which claim violations of constitutional rights. Importantly, while the Supreme Court did not make a definitive ruling when it first heard the Hernandez v. Mesa case, it did clarify that the Bivens question was “antecedent” to that of the extraterritorial application of the Fourth Amendment or the excessive force concerns of the Fifth Amendment. Regarding the Fourth Amendment, the Court dismissed concerns by noting that Hernandez was not a citizen, stating that “disposing of a Bivens claim by resolving the constitutional question” has Court precedent. Regarding the Fifth Amendment, the Court stated that Mesa was entitled to qualified immunity from concerns over excessive use of force under the Bivens question. This claim, combined with the previous one, would ostensibly allow Mesa to avoid liability for any concerns, constitutional or otherwise, subsequent to the granting of his immunity. Thus, while it is increasingly clear that the Bivens question will be central to the ruling in this case when it comes back before the Supreme Court, it is also increasingly unclear whether or not the court will rule in favor of Guereca and his parents.
Since the 1980’s, the Supreme Court has rejected almost every Bivens claim it has evaluated and, with minor exceptions, the lower courts have followed suit. However, a recent case, Rodriguez v. Swartz, which has been described as a close analog, has marked a shift from this trend. Applying the question of constitutionality as related to the Bivens decision led the Ninth Circuit court to determine that Lonnie Swartz (a border guard) lacked qualified immunity in the shooting death of Jose Rodriguez because at the time of the incident it was established that it was unconstitutional for an officer on American soil to use deadly force without justification against a person on the other side of the border. The Ninth Circuit applied the Bivens decision, but with a noted reluctance.
This reluctance emerged, in part, from another case, Ziglar v. Abbasi, which was originally about the Bivens claim of alien detainees who alleged abusive detention conditions. This original case indicated clearly that national security and immigration policy are relevant factors in determining whether to extend Bivens claims. In Rodriguez v. Swartz it was determined that, “although [the case] dealt with border enforcement, Rodriguez’s claim did not implicate national security. Holding Swartz liable would neither impermissibly impede border agents’ discretionary authority nor challenge government policy because Swartz’s use of force contravened federal regulations.” However, because of changing standards in immigration policy and in national security attitudes, specifically surrounding the border, this same decision cannot be automatically applied even to analogous cases.
In short, the resolution of this case is particularly important in determining if there will be any overarching standards regarding the applicability of Bivens claims to cross-border shootings. It is impossible, at this juncture, to predict how this case will be decided. Regardless, this case should be followed closely as it develops because it has the potential to affect many criminal and civil decisions moving forward.
 Linda Ramirez, CBP Acquitted in Second Jury Trial, Bivens Action Still in Question, 35 Int’l Enforcement L. Reporter 23, (2019).
Evan Schleicher is the Editorial Intern for the International Enforcement Law Reporter. He is currently an MA candidate in Security Policy Studies at George Washington University, focusing on transnational security and humanitarian issues.