No Bivens Across The Border

It opened with those dreaded words:

Yet when a good doctrine is combined with those dreaded words, the majority opinion written by Justice Alito, it’s enough to send chills down one’s spine.

There they were, at the start of the 5-4 decision in Hernandez v. Mesa.

JUSTICE ALITO delivered the opinion of the Court.

The case was a hard one, not because there wasn’t overwhelming belief that the Border Patrol agent, Jesus Mesa, Jr., who fired from El Paso, Texas into Ciudad Juarez, Mexico, and killed 15-year-old Sergio Adrián Hernández Güereca, took a life wrongfully and needlessly, but because it was such a bizarre and peculiar fact pattern. As the old adage goes, bad facts make bad law.

The status of the case was the grant of a motion to dismiss by the district court, upheld by the Fifth Circuit. This is a critical detail, as the only question raised was whether the allegations set forth in the complaint, taken as true as they must be on a motion to dismiss, were sufficient to establish a cause of action.

The basis for the complaint in this case was Bivens v. Six Unknown Fed. Narcotics Agents, a 1971 decision creating a cause of action against federal actors akin to a § 1983 action against state actors. The problem was that while Congress was kind enough to establish a right to sue state actors for constitutional violations, to the extent the Supreme Court hasn’t emasculated the law with Qualified Immunity, Congress left out its own.

Bivens, based on the dubious notion of the existence of federal common law torts, was created to fill the gap. On the one hand, it seems obvious that there is a need for Bivens, as it seems incomprehensible that there should be no redress when a federal agent violates a person’s constitutional rights, particularly since the statute would hold a state cop liable for the same conduct.

On the other hand, sovereign immunity would leave the question of whether federal agents can be sued to the sovereign, to Congress, to both establish and set the parameters. Since this liability was created by the Supreme Court rather than Congress, it is whatever the Court says it is. And in Hernandez, Justice Alito got to have his say.

The Executive does not want a Mexican criminal court to judge Agent Mesa’s conduct by whatever standards would be applicable under Mexican law; nor does it want a jury in a Bivens action to apply its own understanding of what constituted reasonable conduct by a Border Patrol agent under the circumstances of this case. Such a jury determination, the Executive claims, would risk the “‘“embarrassment of our government abroad” through “multifarious pronouncements by various departments on one question.”’”

The majority essentially punted to the will of the Executive to dictate international relations, accepting without serious scrutiny that this action for damages for the killing of a Mexican boy, a killing initiated on American soil when Agent Mesa pulled the trigger, but completing its damage in Mexico as his bullet “seized” the life of Hernandez, implicated national security, a concern uniquely in the hands of the President.

One of the ways in which the Executive protects this country is by attempting to control the movement of people and goods across the border, and that is a daunting task. The United States’ border with Mexico extends for 1,900 miles, and every day thousands of persons and a large volume of goods enter this country at ports of entry on the southern border.4 The lawful passage of people and goods in both directions across the border is beneficial to both countries.

Unfortunately, there is also a large volume of illegal cross-border traffic.

What does any of this have to do with Mesa killing Hernandez? Agent Mesa alleged that Hernandez was trying to illegally cross the border when he killed him. In the complaint, it was alleged that Hernandez and his friends were playing a game where they ran toward the border to goad the guards, then ran back. Dangerous, foolish and childish, perhaps, but not worthy of execution. Since this was a motion to dismiss, Hernandez’s allegations are accepted as true. Mesa’s defense of his shooting was the subject for another day.

The Supreme Court, however, didn’t care. Had they taken the limits of a motion to dismiss seriously, Justice Alito’s effort to put this case into the paradigm of national security and international relations wouldn’t pass the laugh test. What happened here was an extreme outlier, not a regular threat to border security. Whether a Border Patrol agent should be criminally prosecuted, here or there, for a shooting that occurred in El Paso and a murder completed in Juaraez is one question, and one that implicates who directs and challenges the deadly force of Border Patrol agents.

But this case? It was just a dead kid killed by an American Border Patrol agent’s bullet. As Justice Ginsburg said in dissent:

The only salient difference here: the fortuity that the bullet happened to strike Hernández on the Mexican side of the embankment. But Hernández’s location at the precise moment the bullet landed should not matter one whit. After all, “[t]he purpose of Bivens is to deter the officer.”

It likely comes as a surprise that the rationale for Bivens claims isn’t the loss suffered, but that the existence of the cause of action will serve to deter conduct by “rogue” federal agents. That being the case, holding that the cause of action ends at the border leaves the harm uncorrected.

Mesa’s allegedly unwarranted deployment of deadly force occurred on United States soil. It scarcely makes sense for a remedy trained on deterring rogue officer conduct to turn upon a happenstance subsequent to the conduct—a bullet landing in one half of a culvert, not the other.

It’s shocking that Hernandez, a putative victim of a bullet fired from American soil by an American agent, has nowhere to turn. It’s shocking as well that the United States would rather see this outlier killing go unaddressed by its agent than put it in the hands of a jury, where “embarrassment” could ensue. But a little embarrassment hardly seems too much to pay for the murder of a child, except when the opinion of the Court is delivered by Justice Alito.

23 thoughts on “No Bivens Across The Border

    1. SHG Post author

      Try it again with rocks, since there are no rocks involved in a MTD.

      But even if there are rocks, which there aren’t, are you really sure you want the death penalty for it?

  1. Mike

    I think I would have been more keen to accept the decision had the court basically threw up their hands and said “the law isn’t what we think it ought to be” and left it at that. The whole line of embarrassing the executive branch killed any notion that the majority just felt this was something Congress should handle and not the courts writing law.

    The (Alanis Morrissette) irony of it all is that this ends up being pretty embarrassing for the court. I wonder if that’s what Alito would prefer.

    1. Solon

      Isn’t the problem that a Bivens action is a common law tort, and not statutory, so that the court could not simply throw up its hands against the law, having created the law itself? (Having not read the case, perhaps it rests on some jurisdictional rule, and not on something inherent in the Bivens action itself, such that the court, having relied on that rule, could simply throw up its hands. I take from the discussion and the dissent, however, that there is no such jurisdictional rule. Of course, I could also just read the decision).

  2. Skink

    “With the demise of federal general common law, a federal court’s authority to recognize a damages remedy must rest at bottom on a statute enacted by Congress, see id., at 286 (“private rights of action to enforce federal law must be created by Congress”), and no statute expressly creates a Bivens remedy. ”

    The majority is trying to stay in its lane: if there is to be a remedy, it’s for Congress to create. There’s long recognition that U.S. laws don’t apply on foreign soil unless Congress makes a clear manifestation otherwise. The decision is pretty simple, even if it’s based on a court-made rule instead of a statute that Congress hasn’t enacted. Not so simple, and not given shrift, is where the shooting happened. That’s probably because it wasn’t part of the remand, but my guesses don’t hold favor.

    When time permits, I’d like to see if some other remedy, like from the State Department, was sought along with the suit.

    1. SHG Post author

      If there was no Bivens, would Congress have created a statutory cause of action? We’ll never know, because there is a Bivens. In his concurrence, Thomas argues that there shouldn’t be, and he has a point, even if I would hate there to be no redress for constitutional violations by federal actors.

      But on the other hand, the bullet was fired on American soil.

      I shot an arrow into the air,
      It fell to earth, I knew not where;
      For, so swiftly it flew, the sight
      Could not follow it in its flight.

      1. Skink

        “But on the other hand, the bullet was fired on American soil.”

        You have enough awareness of me to know that’s where I would begin. In time, I might wander through the decisions in the case to see if the argument was raised and the result. That issue has much more running room than whether a poorly-based decision applies in foreign countries.

  3. Richard Kopf


    Unless you are really weepy (an attribute for which you have not previously been known), Alito was clearly correct. The common law. upon which Bivens was based, always had outer limits–we just learned another one. Mexican kids in Mexican culverts are not covered by the protections of American common law. Makes sense to me. Indeed, it was an “extreme outlier” to use your language.

    All the best.


    PS. But the dead brown kid wasn’t mine, so maybe . . . . Oh, forget it.

      1. Richard Kopf


        A motion to dismiss was precisely the proper device for tacking closely to the notion of judicial modesty when the cause of action is predicated upon federal common law. You no doubt remember the old common law precept that ladies are demure and lawyers demur. Or, to be blunt, the motion to dismiss asks: “So what?” The poor dead Mexican kid got his answer.

        All the best.


        1. SHG Post author

          Yes, I fixed the typo. Let it not be said that I would allow a good old sexist adage to be ruined.

          Women feel.
          Priests believe.
          Lawyers think.

    1. Miles

      Assuming the outcome is correct, it might have read better had Alito managed to come up with at least one rationale that wasn’t cringeworthy. It was not a well-reasoned opinion.

  4. B. McLeod

    Bivens they did not extend,
    Lest our borders none defend,
    The kid is dead and buried too,
    Solving “what would Jesus do?”

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