Thursday, February 27, 2020
The Supreme Court this week dismissed a case by parents of a Mexican youth against a U.S. Border Patrol agent for shooting and killing their son. The ruling declined to extend a Bivens remedy (a constitutional claim against a federal officer) to the cross-border killing and dismissed the case. The ruling ends the case and (if there were any doubt) underscores just how little is left of Bivens.
The case, Hernandez v. Mesa, arose after a U.S. Border Patrol agent shot and killed Sergio Adrian Hernandez Guereca, a 15-year old Mexican national, while he was playing with friends in the concrete culvert that runs between the U.S.-Mexico border. The child's parents sued Agent Jesus Mesa, Jr., under Bivens for violating the Fourth and Fifth Amendments.
A 5-4 Court, divided along conventional ideological lines, ruled that Bivens didn't extend to the case. The Court, in an opinion by Justice Alito, ruled that the case raised a new Bivens context, and that the special factors of foreign affairs, national security, and Congress's failure to provide a remedy for this or similar claims all counseled against extending a Bivens remedy to this new context.
The ruling wasn't surprising, given the Court's most recent foray into Bivens, in Ziglar v. Abbasi. In that case, the Court limited Bivens to all but the precise three contexts where the Court has recognized a Bivens remedy (Bivens itself, a congressional staffer's Fifth Amendment claim of dismissal based on sex, and a federal prisoner's Eighth Amendment claim for failure to provide adequate medical treatment). Just to underscore how little remains of Bivens, the Court there noted that if these claims came up today, the Court would likely rule differently.
Justice Thomas concurred, joined by Justice Gorsuch, arguing that the Court should do away with Bivens entirely.
Justice Ginsburg dissented, joined by Justices Breyer, Sotomayor, and Kagan. She argued that the case did not arise in a new Bivens context, and even if it did, special factors don't counsel against a Bivens remedy. After all, she argued, the case is about whether a federal officer violated the Constitution when he shot and killed the child while on U.S. soil, under U.S. law--and does not intrude on the other branches' conduct of foreign affairs or national security.