Release Date:  February 25, 2020
Contact:  Michael Rushford
(916) 446-0345

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The high court in Hernández v. Mesa refuses to allow a lawsuit against U. S. border patrol agent to proceed

In a 5-4 decision announced today, the U. S. Supreme Court affirmed a Fifth Circuit ruling that prohibits the Mexican parents of a Mexican teenager, killed by a U. S. Border Patrol Agent in a cross-border shooting, from suing the agent for damages under the U. S. Constitution.

At issue in Hernández v. Mesa was whether parents who are Mexican citizens have the right to sue a U. S. law enforcement officer for an incident on the Mexican side of the U. S.-Mexico border, which resulted in the death of their 15-year-old son, also a Mexican citizen living in Mexico.

The Sacramento-based Criminal Justice Legal Foundation originally joined the case in 2017 to encourage a decision denying the lawsuit. CJLF argued that under the circumstances of the shooting, the parents cannot seek to hold a border patrol agent personally liable for an alleged offense which occurred in another country. In their lawsuit, the teenager’s parents argued that their son’s constitutional rights were violated, and thus they were entitled to sue and hold the agent personally liable for excessive force resulting in the death of their son. They cited to a 1971 Supreme Court ruling in Bivens v. Six Unknown Federal Narcotics Agents for support.

In a June 2017 ruling, the Supreme Court sent the case back to the Fifth Circuit Court of Appeals to determine if the lawsuit was affected by the Court’s 2017 decision in another case (Ziglar v. Abbasi), which held that alleged terrorists from a foreign country could not sue U. S. officials for implementing anti-terrorist policies. In March 2018, the Fifth Circuit held that, after considering Abbasi, the unique circumstances of the case precluded the Mexican parents from suing the border patrol agent in a U. S. court.

In 2019, the Foundation again joined the case to encourage a decision affirming the Fifth Circuit’s ruling, noting that in light of Abbasi and the unique circumstances of this case, Bivens should not extend constitutional protections to foreign citizens with no ties to the United States.

Writing for the majority, Associate Justice Samuel Alito stated, “unlike any previously recognized Bivens claim, a cross-border shooting claim has foreign relations and national security implications. In addition, Congress has been notably hesitant to create claims based on allegedly tortious conduct abroad. Because of the distinctive characteristics of cross-border shooting claims, we refuse to extend Bivens into this new field.”

The Supreme Court has not implied a Bivens-type cause of action and remedy to a new context in over 30 years. The Foundation filed a scholarly amicus curiae (friend of the court) brief arguing that Congress, not the judiciary, is the proper branch to decide if noncitizens can recover money damages for government conduct occurring in a foreign country. Noting that Congress has enacted no statute that permits a noncitizen who was injured abroad to file a damages claim against a federal law enforcement officer, the CJLF brief states that the “fact that Congress has deliberately and expressly excepted the recovery of monetary relief for torts occurring in a foreign country should speak volumes” to the Court.

“A decision to allow this lawsuit to proceed would have permitted the family of a noncitizen with no ties to the U. S., who was likely engaging in criminal activity, to force a border patrol agent into litigation over an incident that had been investigated by the Department of Justice,” said CJLF Associate Attorney Kymberlee Stapleton. “Border patrol agents are our country’s frontline guards and they must make split second judgments on a daily basis. If the Court had opened up the ability for them to be personally liable for those difficult decisions, it would have chilled the enforcement of America’s border security.”

CJLF Associate Attorney Kymberlee Stapleton is available for comment at (916) 446-0345.