Hernandez v. Mesa

Decision Date25 February 2020
Docket NumberNo. 17-1678,17-1678
Citation206 L.Ed.2d 29,140 S.Ct. 735
Parties Jesus C. HERNANDEZ, et al., Petitioners v. Jesus MESA, Jr.
CourtU.S. Supreme Court

Randolph J. Ortega, Gabriel Perez, Ortega McGlashan Hicks & Perez, Louis Elias Lopez, Jr., El Paso, TX, for Respondent.

Robert C. Hilliard, Marion M. Reilly, Hilliard Martinez, Gonzales, LLP, Corpus Christi, TX, Steve D. Shadowen, Matthew C. Weiner, Nicholas W. Shadowen, Hilliard & Shadowen LLP, Stephen I. Vladeck, Austin, TX, Leah M. Litman, Ann Arbor, MI, Cristobal M. Galindo, Cristobal M. Galindo, P.C., Houston, TX, for Petitioners.

Justice ALITO delivered the opinion of the Court.

We are asked in this case to extend Bivens v. Six Unknown Fed. Narcotics Agents , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and create a damages remedy for a cross-border shooting. As we have made clear in many prior cases, however, the Constitution's separation of powers requires us to exercise caution before extending Bivens to a new "context," and a claim based on a cross-border shooting arises in a context that is markedly new. Unlike any previously recognized Bivens claim, a cross-border shooting claim has foreign relations and national security implications. In addition, Congress has been notably hesitant to create claims based on allegedly tortious conduct abroad. Because of the distinctive characteristics of cross-border shooting claims, we refuse to extend Bivens into this new field.


The facts of this tragic case are set forth in our earlier opinion in this matter, Hernández v. Mesa , 582 U.S. ––––, 137 S.Ct. 2003, 198 L.Ed.2d 625 (2017) (per curiam ). Sergio Adrián Hernández Güereca, a 15-year-old Mexican national, was with a group of friends in a concrete culvert that separates El Paso, Texas, from Ciudad Juarez, Mexico. The border runs through the center of the culvert, which was designed to hold the waters of the Rio Grande River but is now largely dry. Border Patrol Agent Jesus Mesa, Jr., detained one of Hernández's friends who had run onto the United States' side of the culvert. After Hernández, who was also on the United States' side, ran back across the culvert onto Mexican soil, Agent Mesa fired two shots at Hernández; one struck and killed him on the other side of the border.

Petitioners and Agent Mesa disagree about what Hernández and his friends were doing at the time of shooting. According to petitioners, they were simply playing a game, running across the culvert, touching the fence on the U.S. side, and then running back across the border. According to Agent Mesa, Hernández and his friends were involved in an illegal border crossing attempt, and they pelted him with rocks.1

The shooting quickly became an international incident, with the United States and Mexico disagreeing about how the matter should be handled. On the United States' side, the Department of Justice conducted an investigation. When it finished, the Department, while expressing regret over Hernández's death, concluded that Agent Mesa had not violated Customs and Border Patrol policy or training, and it declined to bring charges or take other action against him. Mexico was not and is not satisfied with the U.S. investigation. It requested that Agent Mesa be extradited to face criminal charges in a Mexican court, a request that the United States has denied.

Petitioners, Hernández's parents, were also dissatisfied

and therefore brought suit for damages in the United States District Court for the Western District of Texas. Among other claims, they sought recovery of damages under Bivens , alleging that Mesa violated Hernández's Fourth and Fifth Amendment rights. The District Court granted Mesa's motion to dismiss, and the Court of Appeals for the Fifth Circuit sitting en banc has twice affirmed this dismissal.

On the first occasion, the court held that Hernández was not entitled to Fourth Amendment protection because he was "a Mexican citizen who had no ‘significant voluntary connection’ to the United States" and "was on Mexican soil at the time he was shot." Hernandez v. United States , 785 F.3d 117, 119 (C.A.5 2015) (per curiam ). It further concluded that Mesa was entitled to qualified immunity on petitioners' Fifth Amendment claim. Id., at 120.

After granting review, we vacated the Fifth Circuit's decision and remanded the case, instructing the court "to consider how the reasoning and analysis" of Ziglar v. Abbasi , 582 U.S. ––––, 137 S.Ct. 1843, 198 L.Ed.2d 290 (2017), our most recent explication of Bivens , "[might] bear on this case." Hernández , 582 U.S., at ––––, 137 S.Ct., at 2006. We found it "appropriate for the Court of Appeals, rather than this Court, to address the Bivens question in the first instance." Ibid. And with the Bivens issue unresolved, we thought it "imprudent" to resolve the "sensitive" question whether the Fourth Amendment applies to a cross-border shooting. Ibid. In addition, while rejecting the ground on which the Court of Appeals had held that Agent Mesa was entitled to qualified immunity, we declined to decide whether he was entitled to qualified immunity on a different ground or whether petitioners' claim was cognizable under the Fifth Amendment. Id., at –––– – ––––, 137 S.Ct., at 2006–2008

On remand, the en banc Fifth Circuit evaluated petitioners' case in light of Abbasi and refused to recognize a Bivens claim for a cross-border shooting. 885 F.3d 811 (C.A.5 2018). The court reasoned that such an incident presents a " ‘new context’ " and that multiple factors—including the incident's relationship to foreign affairs and national security, the extraterritorial aspect of the case, and Congress's "repeated refusals" to create a damages remedy for injuries incurred on foreign soil—counseled against an extension of Bivens . 885 F.3d at 816–823.

We granted certiorari, 587 U.S. ––––, 139 S.Ct. 2636, 204 L.Ed.2d 282 (2019), and now affirm.


In Bivens v. Six Unknown Fed. Narcotics Agents , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619, the Court broke new ground by holding that a person claiming to be the victim of an unlawful arrest and search could bring a Fourth Amendment claim for damages against the responsible agents even though no federal statute authorized such a claim. The Court subsequently extended Bivens to cover two additional constitutional claims: in Davis v. Passman , 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), a former congressional staffer's Fifth Amendment claim of dismissal based on sex, and in Carlson v. Green , 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), a federal prisoner's Eighth Amendment claim for failure to provide adequate medical treatment. After those decisions, however, the Court changed course.

Bivens , Davis , and Carlson were the products of an era when the Court routinely inferred "causes of action" that were "not explicit" in the text of the provision that was allegedly violated. Abbasi , 582 U.S., at ––––, 137 S.Ct., at 1855. As Abbasi recounted:

"During this ancien regime ,’ ... the Court assumed it to be a proper judicial function to ‘provide such remedies as are necessary to make effective’ a statute's purpose .... Thus, as a routine matter with respect to statutes, the Court would imply causes of action not explicit in the statutory text itself." Ibid. (quoting Alexander v. Sandoval , 532 U.S. 275, 287, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) ; J. I. Case Co. v. Borak , 377 U.S. 426, 433, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964) ).

Bivens extended this practice to claims based on the Constitution itself. 582 U.S., at ––––, 137 S.Ct., at 1855 ; Bivens , 403 U.S. at 402, 91 S.Ct. 1999 (Harlan, J., concurring in judgment) (Court can infer availability of damages when, "in its view, damages are necessary to effectuate" the "policy underpinning the substantive provisio[n]").

In later years, we came to appreciate more fully the tension between this practice and the Constitution's separation of legislative and judicial power. The Constitution grants legislative power to Congress; this Court and the lower federal courts, by contrast, have only "judicial Power." Art. III, § 1. But when a court recognizes an implied claim for damages on the ground that doing so furthers the "purpose" of the law, the court risks arrogating legislative power. No law " ‘pursues its purposes at all costs.’ " American Express Co. v. Italian Colors Restaurant , 570 U.S. 228, 234, 133 S.Ct. 2304, 186 L.Ed.2d 417 (2013) (quoting Rodriguez v. United States , 480 U.S. 522, 525–526, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987) (per curiam )). Instead, lawmaking involves balancing interests and often demands compromise. See Board of Governors, FRS v. Dimension Financial Corp. , 474 U.S. 361, 373–374, 106 S.Ct. 681, 88 L.Ed.2d 691 (1986). Thus, a lawmaking body that enacts a provision that creates a right or prohibits specified conduct may not wish to pursue the provision's purpose to the extent of authorizing private suits for damages. For this reason, finding that a damages remedy is implied by a provision that makes no reference to that remedy may upset the careful balance of interests struck by the lawmakers. See ibid.

This problem does not exist when a common-law court, which exercises a degree of lawmaking authority, fleshes out the remedies available for a common-law tort. Analogizing Bivens to the work of a common-law court, petitioners and some of their amici make much of the fact that common-law claims against federal officers for intentional torts were once available. See, e.g. , Brief for Petitioners 10–20. But Erie R. Co. v. Tompkins , 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), held that "[t]here is no federal general common law," and therefore federal courts today cannot fashion new claims in the way that they could before 1938. See Alexander , 532 U.S. at 287, 121 S.Ct. 1511 (" ‘Raising up causes of action where a statute has not created them may be a proper function for common-law courts, but not for federal...

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