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.