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Law School Case Brief

Hernandez v. Mesa - 140 S. Ct. 735 (2020)


The United States Constitution's separation of powers requires the Supreme Court of the United States to exercise caution before extending Bivens to a new context, and a claim based on a cross-border shooting arises in a context that is markedly new. 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, the Court refuses to extend Bivens into this new field.


Respondent, United States Border Patrol Agent Jesus Mesa, Jr., shot and killed Sergio Adrin Hernandez Gereca, a 15-year-old Mexican national, in a tragic and disputed cross-border incident. Mesa was standing on U.S. soil when he fired the bullets that struck and killed Hernandez, who was on Mexican soil, after having just run back across the border following entry onto U.S. territory. Agent Mesa contended that Hernandez was part of an illegal border crossing attempt, while Hernandez's parents, petitioners Jesus C. Hernandez and Maria Guadalupe Guereca Bentacour, claimed he was playing a game with his friends that involved running back and forth across the culvert separating El Paso, Texas, from Ciudad Juarez, Mexico. The U.S. Department of Justice investigated the shooting and concluded that Agent Mesa had not violated Customs and Border Patrol policy or training, and declined to bring charges against him. The United States also denied Mexico's request for Agent Mesa to be extradited to face criminal charges in Mexico. Petitioners filed a lawsuit against Mesa in federal district court seeking to recover damages pursuant to Bivens v. Six Unknown Fed. Narcotics Agentsalleging that Mesa violated Hernandez's Fourth and Fifth Amendment rights. The district court dismissed their claims, and the United States Court of Appeals for the Fifth Circuit affirmed. After the Supreme Court of the United States vacated that decision and remanded for further consideration in light of its holing in Ziglar v. Abbasi137 S. Ct. 1843 (2017)the Fifth Circuit again affirmed, refusing to recognize a Bivens claim for a cross-border shooting. Petitioners were granted a writ of certiorari.


Should a Bivens claim be recognized for a cross-border shooting?




The Supreme Court of the United States affirmed the decision from the court of appeals. The Court held that Bivens did not extend to claims based on a cross-border shooting. When considering whether to extend Bivens, the Court applied a two-step inquiry that asked first whether the request involved a claim that arose in a "new context" or involved a "new category of defendants." If so, the Court then asked whether there were any "special factors that counsel hesitation" about granting the extension. In the case at bar, the Court averred that the Bivens claim assuredly arose in a new context. Factors that counseled hesitation included the potential effect on foreign relations, the risk of undermining border security, and the fact that when Congress enacted statutes creating a damages remedy for persons injured by U.S. government officers, it precluded claims for injuries that occurred abroad. As such, the Court concluded that petitioners could not bring Bivens claims against the Mesa for his alleged Fourth and Fifth Amendment violations.
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