Hernandez v. United States of America, Nos. 12-50217, 12-50301 (5th Cir.), sub. nom, Hernandez v. Mesa, No. 15-118 (U.S.)
On June 7, 2010, Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican national, was playing with a group of friends on the Mexican side of the border near the Paso del Norte Bridge in El Paso, Texas. The boy and his friends were playing a game in which they ran up the incline of a cement culvert, touched the fence separating the US and Mexico and then ran back down the incline. While they were playing, U.S. Border Patrol Agent Jesus Mesa, Jr. stopped one of Hernandez’s friends, and Hernandez retreated and observed from beneath the pillars of the Paso del Norte Bridge (on the Mexico side). Agent Mesa, standing on U.S. soil, fired at least two gun shots from within the country. One of the bullets hit the boy in the face and killed him.
The boy’s parents sued, raising claims against the United States, Agent Mesa, and unknown federal employees. The district court dismissed the claims for various reasons. On June 30, 2014, a three-judge panel of the Fifth Circuit Court of Appeals reversed the lower court in part and affirmed in part. Although the Court affirmed parts of the district court’s decision, significantly, it ruled that the boys’ parents could bring a Fifth Amendment claim against Agent Mesa. In so holding, the court determined that the child had a Fifth Amendment right to be free from actions that “shock the conscience.” Both the United States and Agent Mesa asked the Fifth Circuit to rehear (reconsider) the court’s decision.
On November 5, 2014, the court granted en banc rehearing and vacated its earlier decision. On January 21, 2015, the en banc panel heard oral argument. On April 24, 2015, the Fifth Circuit issued an en banc opinion. On the question of the violation of Sergio’s rights under the Fourth Amendment, the court held that Plaintiffs could not assert a Fourth Amendment claim because Sergio had no significant voluntary connection to the United States and because was physically in Mexico when Agent Mesa shot him. The court further held that Plaintiffs could not assert a Fifth Amendment claim because, at the time of the shooting, no case law reasonably warned Agent Mesa that the prohibition on excessive force applied in this situation.
On October 11, 2016, the Supreme Court granted certiorari and agreed to hear the case. On June 26, 2017, the Supreme Court vacated the judgment of the Fifth Circuit and remanded the case for further proceedings. In its opinion, the Court first addressed the Bivens claim. It determined that a recently decided Supreme Court decision—Ziglar v. Abbasi, which laid out special factors which counsel “hesitation” in applying a Bivens remedy—would inform the analysis of the Bivens question. The Court remanded to give the parties “the opportunity to brief and argue [Abbasi’s] significance” in answering that question. Second, the Court declined to resolve the Fourth Amendment issue before the Court of Appeals could weigh in under the guidance provided by Abbasi. Finally, with respect to the Fifth Amendment claims regarding Mesa’s qualified immunity, the Court held the Fifth Circuit erred when it granted qualified immunity because Hernandez was a noncitizen “who had no significant voluntary connection to…the United States.” Since that fact was not known to Mesa at the time he shot Hernandez, extending qualified immunity was not appropriate. The Court further declined to address the government’s arguments that Mesa was entitled to qualified immunity regardless of his uncertainty about Hernandez’s nationality at the time of the shooting, and that petitioners’ claim was not cognizable at all under the Fifth Amendment.
On remand from the Supreme Court following its decision in Ziglar v. Abbasi, 137 U.S. 1843 (2017), the Fifth Circuit en banc held that a cross-border shooting presented a “new context” for which federal courts do not have the authority to find an implied damages action under Bivens v. Six Unknown Named Agents of the FBI, 403 U.S. 388 (1971). As a result, the Fifth Circuit dismissed plaintiffs’ Bivens claims. On May 28, 2019, the Supreme Court granted certiorari for a second time.
On February 25, 2020, the Supreme Court issued a decision holding that Bivens was unavailable applying the two-part test outlined in Abbasi. The court first determined that the Hernandez family’s Bivens claims arose in a new context. Turning to the second step of the test, the court found “multiple, related factors” counseling hesitation about extending Bivens. The Hernandez family’s case implicates foreign relations, the court reasoned, because of the “legitimate and important interests” of both the United States and Mexico “that may be affected by the way in which this matter is handled.” “It is not our task,” the court said, “to arbitrate between them.” The court also held that the case implicates the “conduct of agents positioned at the border,” which has a “clear and strong connection to national security.” Writing in dissent, Justice Ginsburg argued that holding a rogue, low-ranking officer accountable for killing a teenager would not undermine U.S. diplomacy or national security.