SCOTUS: The estate of a young man shot and killed across the U.S.-Mexico border by a U.S. Border Patrol agent has no 4A or 5A Bivens claim.

The estate of a young man shot and killed across the U.S.-Mexico border by a U.S. Border Patrol agent for no reason has no Bivens claim for a Fourth or Fifth Amendment claim. Hernández v. Mesa, 2020 U.S. LEXIS 1361 (Feb. 25, 2020):

Respondent, United States Border Patrol Agent Jesus Mesa, Jr., shot and killed Sergio Adrián Hernández 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 Hernández, who was on Mexican soil, after having just run back across the border following entry onto U.S. territory. Agent Mesa contends that Hernández was part of an illegal border crossing attempt, while petitioners, Hernández’s parents, claim 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 shooting drew international attention, and the Department of Justice investigated, 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 sued for damages in U. S. District Court under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, alleging that Mesa violated Hernández’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 this Court vacated that decision and remanded for further consideration in light of Ziglar v. Abbasi, 582 U.S. ___, the Fifth Circuit again affirmed, refusing to recognize a Bivens claim for a cross-border shooting.

Held: Bivens holding does not extend to claims based on a cross-border shooting. Pp. 4-20.

(a) In Bivens, the Court implied a Fourth Amendment claim for damages even though no federal statute authorized such a claim. The Court later extended Bivens reach to cover claims under the Fifth and Eighth Amendments. See Davis v. Passman, 442 U.S. 228; Carlson v. Green, 446 U.S. 14. But Bivens expansion has since become a disfavored judicial activity, Abbasi, supra, at ___, and the Court has generally expressed doubt about its authority to recognize causes of action not expressly created by Congress, see, e.g., Jesner v. Arab Bank, PLC, 584 U.S. ___, ___. When considering whether to extend Bivens, the Court uses a two-step inquiry that first asks whether the request involves a claim that arises in a new context or involves a new category of defendants. Correctional Services Corp. v. Malesko, 534 U. S. 61, 68. If so, the Court then asks whether there are any special factors [that] counse[l] hesitation about granting the extension. Abbasi, supra, at ___. Pp. 4-8.

(b) Petitioners’ Bivens claims arise in a new context. Their claims are based on the same constitutional provisions as claims in cases in which damages remedies were previously recognized, but the context of a cross-border shooting is significantly different … from previous Bivens cases. Abbasi, supra, ___. It involves a risk of disruptive intrusion by the Judiciary into the functioning of other branches. Abbasi, supra, ___. Pp. 8-9.

(c) Multiple, related factors counsel hesitation before extending Bivens remedies into this new context. Pp. 9-19.

(1) The expansion of a Bivens remedy that impinges on foreign relations in an arena so exclusively entrusted to the political branches . . . as to be largely immune from judicial inquiry, Haig v. Agee, 453 U.S. 280, 292, risks interfering with the Executive Branch’s lead role in foreign policy, Medellín v. Texas, 552 U.S. 491, 524. A cross-border shooting affects the interests of two countries and, as happened here, may lead to disagreement. It is not for this Court to arbitrate between the United States and Mexico, which both have legitimate and important interests at stake and have sought to reconcile those interests through diplomacy. Pp. 9-12.

(2) Another factor is the risk of undermining border security. The U. S. Customs and Border Protection Agency is responsible for preventing the illegal entry of dangerous persons and goods into the United States, and the conduct of their agents positioned at the border has a clear and strong connection to national security. This Court has not extended Bivens where doing so would interfere with the system of military discipline created by statute and regulation, see, e.g., Chappell v. Wallace, 462 U. S. 296, and a similar consideration is applicable to the framework established by the political branches for addressing cases in which it is alleged that lethal force at the border was unlawfully employed by a border agent. Pp. 12-14.

(3) Moreover, Congress has repeatedly declined to authorize the award of damages against federal officials for injury inflicted outside U. S. borders. For example, recovery under 42 U.S.C. 1983 is available only to citizen[s] of the United States or other person[s] within the jurisdiction thereof. The Federal Tort Claims Act bars [a]ny claim arising in a foreign country. 28 U.S.C. 2680(k). And the Torture Victim Protection Act of 1991, note following 28 U.S.C. 1350, cannot be used by an alien to sue a United States officer. When Congress has provided compensation for injuries suffered by aliens outside the United States, it has done so by empowering Executive Branch officials to make payments under circumstances found to be appropriate. See, e.g., Foreign Claims Act, 10 U.S.C. 2734. Congress’s decision not to allow suit in these contexts further indicates that the Judiciary should not create a cause of action that extends across U. S. borders either. Pp. 14-18.

(4) These factors can all be condensed to the concern for respecting the separation of powers. The most important question is whether Congress or the courts should create a damages remedy. Here the answer is Congress. Congress’s failure to act does not compel the Court to step into its shoes. Pp. 19-20.
885 F.3d 811, affirmed.

Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Gorsuch, and Kavanaugh, JJ., joined. Thomas, J., filed a concurring opinion, in which Gorsuch, J., joined. Ginsburg, J., filed a dissenting opinion, in which Breyer, Sotomayor, and Kagan, JJ., joined.

Now that DoJ has made it’s point, they should just pay the family for this crime.

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