Hernandez v. United States
| Decision Date | 30 June 2014 |
| Docket Number | 12–50301.,12–50217,Nos. 11–50792,s. 11–50792 |
| Citation | 757 F.3d 249 |
| Parties | Jesus C. HERNANDEZ, Individually and as the surviving father of Sergio Adrian Hernandez Guereca, and as Successor–in–Interest to the Estate of Sergio Adrian Hernandez Guereca; Maria Guadalupe Guereca Bentacour, Individually and as the surviving mother of Sergio Adrian Hernandez Guereca, and as Successor–in–Interest to the Estate of Sergio Adrian Hernandez Guereca, Plaintiffs–Appellants v. UNITED STATES of America; United States Department of Homeland Security; United States Bureau of Customs and Border Protection; United States Border Patrol; United States Immigration and Customs Enforcement Agency; United States Department of Justice, Defendants–Appellees Jesus C. Hernandez, Individually and as the surviving father of Sergio Adrian Hernandez Guereca, and as Successor–in–Interest to the Estate of Sergio Adrian Hernandez Guereca; Maria Guadalupe Guereca Bentacour, Individually and as the surviving mother of Sergio Adrian Hernandez Guereca, and as Successor–in–Interest to the Estate of Sergio Adrian Hernandez Guereca, Plaintiffs–Appellants v. Jesus Mesa, Jr., Defendant–Appellee Jesus C. Hernandez, Individually and as the surviving father of Sergio Adrian Hernandez Guereca, and as Successor–in–Interest to the Estate of Sergio Adrian Hernandez Guereca; Maria Guadalupe Guereca Bentacour, Individually and as the surviving mother of Sergio Adrian Hernandez Guereca, and as Successor–in–Interest to the Estate of Sergio Adrian Hernandez Guereca, Plaintiffs–Appellants v. Ramiro Cordero; Victor M. Manjarrez, Jr., Defendants–Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
OPINION TEXT STARTS HERE
Robert C. Hilliard, Esq., Rudy O. Gonzales, Jr., Marion M. Reilly, Hilliard Munoz Gonzales, L.L.P., Corpus Christi, TX, Cristobal Miguel Galindo, Attorney, Houston, TX, Steve D. Shadowen, Esq., Hilliard & Shadowen, L.L.C., Mechanicsburg, PA, for Plaintiffs–Appellants.
Henry Charles Whitaker, Helen Louise Gilbert, Esq., Daniel Joseph Lenerz, Esq., U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC, Harold Edwin Brown, Jr., Esq., Assistant U.S. Attorney, U.S. Attorney's Office, San Antonio, TX, for Defendants–Appellees.
Appeals from the United States District Court for the Western District of Texas.
Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
This case involves a foreign national's attempt to invoke constitutional protection for an injury that occurred outside the United States. United States Border Patrol Agent Jesus Mesa, Jr. (“Agent Mesa”), standing in the United States, shot and killed Sergio Adrian Hernandez (“Hernandez”) Guereca, a Mexican citizen, standing in Mexico. Hernandez's family sued, asserting a number of claims against the United States, the border patrol agent, and the agent's supervisors. For the following reasons, we AFFIRM the judgments in favor of the United States and the supervisors, but we REVERSE the judgment in favor of the border patrol agent.
Appellants' complaint sets forth the following factual allegations. On June 7, 2010, Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican national, was gathered with a group of friends on the Mexican side of a cement culvert that separates the United States and Mexico.1 Hernandez and his friends were playing a game that involved running up the incline of the culvert, touching the barbed-wire fence separating Mexico and the United States, and then running back down the incline. As they were playing, United States Border Patrol Agent Jesus Mesa, Jr. arrived on the scene and detained one of Hernandez's friends, causing Hernandez to retreat “beneath the pillars of the Paso del Norte Bridge” in Mexico to observe. Agent Mesa, still standing in the United States, then fired at least two shots at Hernandez, one of which struck him in the face and killed him.
Hernandez's parents, Jesus C. Hernandez and Maria Guadalupe Guereca Bentacour (“the Appellants”), sued, asserting eleven claims against the United States, Agent Mesa, and unknown federal employees. They brought the first seven claims under the Federal Tort Claims Act (“FTCA”) based on multiple allegations of tortious conduct.2 Their next two claims asserted that the United States and the unknown federal employees had violated Hernandez's Fourth and Fifth Amendment rights by knowingly adopting inadequate procedures regarding the use of deadly force and by failing to adopt adequate procedures regarding the use of reasonable force in effecting arrests. Their tenth claim asserted that Agent Mesa was liable under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for violating Hernandez's Fourth and Fifth Amendment rights through the use of “excessive, deadly force.” Finally, for their eleventh claim, the Appellants invoked the district court's jurisdiction under the Alien Tort Statute (“ATS”), alleging that Hernandez “was shot in contravention of international treaties, conventions and the Laws of Nations.”
The United States moved to dismiss the claims against it, which included all claims except for the Bivens action against Agent Mesa. As a preliminary matter, the district court determined that under the Westfall Act, 28 U.S.C. § 2679, the United States was the only proper defendant for the common law tort claims because Agent Mesa was acting in the course and scope of his employment. The Appellants did not dispute this determination, and the court substituted the United States as the only party-defendant for those claims. See28 U.S.C. § 2679(b)(1) (). The district court then granted the motion to dismiss, holding that the United States had not waived sovereign immunity for these claims under either the FTCA or the ATS.
After the court dismissed the claims against the United States, the Appellants amended their complaint to add four Bivens actions against Agent Mesa's supervisors—Ramiro Cordero, Scott Luck, Victor Manjarrez, Jr., and Carla Provost. The Appellants asserted that these supervisors violated Hernandez's Fourth and Fifth Amendment rights “by tolerating and condoning a pattern of brutality and excessive force by Border Patrol agents; systematically failing to properly and adequately monitor and investigate incidents of brutality or supervise and discipline officers involved in such misconduct; creating an environment to shield agents from liability for their wrongful conduct; and inadequately training officers and agents regarding the appropriate use and restraint of their firearms as weapons.” Additionally, the Appellants alleged that the supervisors “had actual and/or constructive knowledge” that Agent Mesa's conduct “posed [a] pervasive and unreasonable risk of constitutional injury” and that their response to such knowledge was “so inadequate as to show deliberate indifference or tacit authorization of alleged offensive practices.”
Shortly thereafter, Agent Mesa moved to dismiss the claims against him, asserting qualified immunity and arguing that Hernandez, as an alien injured outside the United States, lacked Fourth or Fifth Amendment protections. The district court agreed and dismissed the claims against Agent Mesa. Specifically, the court relied on United States v. Verdugo–Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990), to hold that Hernandez could not invoke the Fourth Amendment's protection because he was an alien with no voluntary ties to the United States. The court found Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), inapplicable because Boumediene said nothing about “the Fourth Amendment right against unreasonable searches and seizures.” The court then dismissed the Appellants' Fifth Amendment claim, holding under Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), that excessive force claims should be analyzed only under the Fourth Amendment.
Finally, the supervisors sought dismissal of, or alternatively summary judgment on, the remaining Bivens action against them. The supervisors argued that the Appellants had failed to adequately allege a violation of clearly established Fourth or Fifth Amendment rights and that, even if they had, the supervisors were not personally responsible for any constitutional violation. The Appellants responded by voluntarily dismissing Agent Luck and Agent Provost. The district court then granted summary judgment for the remaining defendants, Agent Cordero and Agent Manjarrez, holding that the Appellants had failed to show “that the Defendants were personally involved in the June 7 incident” or that there was a causal link “between the Defendants' acts or omissions and a violation of Hernandez's rights.” 3 The court noted that Agent Cordero had not supervised agents in Agent Mesa's position “since 2006–four years before the June 7 incident.” Additionally, Agent Manjarrez was transferred to a different sector from Agent Mesa's “eight months before the June 7 incident.” The court found both of these gaps created “too remote a time period to raise a genuine issue of material fact that [the supervisors'] actions or omissions proximately caused [the Appellants'] harm.” 4
The Appellants timely appealed each adverse judgment, and we consolidated the appeals for review.5
We begin with the claims asserted against the United States, specifically those asserted under the FTCA. The FTCA “is a limited waiver of sovereign immunity, making the Federal Government liable to the same extent as a private party for certain torts of federal employees acting within the scope of their employment.” United States v. Orleans, 425 U.S. 807, 813, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976)...
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