Fifth Circuit Decides Cross-Border Shooting Case
Last term, the U.S. Supreme Court in a cross-border shooting case instructed the court of appeals to consider whether the plaintiffs could “rely on the Supreme Court’s 1971 decision in Bivens v. Six Unknown Named Agents, holding that a plaintiff can bring a private federal case for damages against federal officials who allegedly violated his constitutional rights.” In an opinion written by Judge Edith H. Jones, the U.S. Court of Appeals for the Fifth Circuit en banc decided that they could not. As the court explains,
“This appeal returned to the court en banc following remand from the United States Supreme Court. Prompted by the High Court, we have carefully considered a question antecedent to the merits of the Hernandez family’s claims against United States Customs & Border Patrol Agent Mesa: whether federal courts have the authority to craft an implied damages action for alleged constitutional violations in this case. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971) [hereinafter Bivens]. We hold that this is not a garden variety excessive force case against a federal law enforcement officer. The transnational aspect of the facts presents a “new context” under Bivens, and numerous “special factors” counsel against federal courts’ interference with the Executive and Legislative branches of the federal government.”
Judge Edward C. Prado, joined by Judge James E. Graves, dissents:
“Today’s en banc majority denies Sergio Hernandez’s parents a Bivens remedy for the loss of their son at the hands of a United States Border Patrol agent. The majority asserts that the transnational nature of this case presents a new context under Bivens and that special factors counsel against this Court’s interference. While I agree that this case presents a new context, I would find that no special factors counsel hesitation in recognizing a Bivens remedy because this case centers on an individual federal officer acting in his law enforcement capacity. I respectfully dissent.”
The facts of the case, as described by Judge Jones, are simple:
“Sergio Hernandez was a 15-year-old Mexican citizen without family in, or other ties to, the United States. On June 7, 2010, while at play, he had taken a position on the Mexican side of a culvert that marks the boundary between Ciudad Juarez, Mexico, and El Paso, Texas. The FBI reported that Agent Mesa was engaged in his law enforcement duties when a group of young men began throwing rocks at him from the Mexican side of the border. From United States soil, the agent fired several shots toward the assailants. Hernandez was fatally wounded.”
KJ