The United States' southern border with Mexico can be a dangerous place. It was more than dangerous but fatal for a Mexican teenager, Sergio Adrián Hernández Guüreca, on June 7, 2010, when he was playing with friends in the concrete culvert that divides the border cities of El Paso, Texas, and Ciudad Juarez, Mexico.
Hernández died at the hands of a U.S. Border Patrol agent, Jesus Mesa Jr., who fired a bullet that struck Hernández in the face on the Mexican side of the culvert's unmarked border. With that happenstance, Hernández's parents lost the ability to hold Mesa responsible in U.S. courts for their son's death in what the Supreme Court was to describe in its decision
10 years later as "this tragic case."
The episode was not only tragic but also avoidable, with greater care on Mesa's part. With a 5-4 decision last month, however, the Supreme Court eliminated the only legal tool available in practical terms to encourage trigger-happy Border Patrol agents such as Mesa to exercise more care before resorting to lethal force against unarmed and innocent Mexicans on their side of the border.
Hernández 's death sparked outrage in Mexico and even an unsuccessful effort to prosecute Mesa for murder: thwarted by the United States' refusal to extradite the agent. On the U.S. side of the border, the episode prompted a cursory investigation that cleared Mesa of any wrongdoing and a self-defense coverup contradicted by later discovered video from the scene.
The Mexican youths, by their accounts, had been playing a game of climbing up the bank of the former Rio Grande riverbed to touch U.S. soil and then running back down into Mexico. Mesa claimed that the boys were trying to cross into Texas and that he fired two shots at Hernández only after the youths pelted him with rocks and swarmed around him. The onlooker's video showed no rock-throwing and no youths surrounding Mesa.
Hernández's death was not an "isolated incident," as Justice Ruth Bader Ginsburg wrote in dissenting from the eventual decision. In a more egregious case at the Arizona border in 2012, a Border Patrol agent fired more than a dozen bullets across the border, killing a 16-year-old boy while he was walking on the street in Nogales, Mexico.
The Mexican government counted Hernández' death at the border as the seventeenth in the first six months of 2010: up from the five deaths in 2008 and twelve fatal shootings in 2009. Former Border Patrol officials filed a brief
in the Hernández case stating that to their knowledge the United States had never prosecuted a Border Patrol agent for a fatal shooting nor extradited an agent for prosecution in Mexico.
The government's response to the broader array of complaints of physical and verbal abuse by Border Patrol agents has been similarly anemic. A study
by the American Immigration Council found that among more than 800 complaints filed from 2009 to 2012, no action was taken in 97 percent of those that resulted in formal decisions.
With formal channels of accountability seemingly futile, Hernández's parents, represented by among others the University of Texas law professor Stephen Vladeck, turned to U.S. courts. They filed a suit in federal district court in El Paso, seeking to take advantage of a Supreme Court precedent, Bivens v. Six Unknown Federal Narcotics Agents (1971), which created a cause of action against federal officials for violations of constitutional rights.
The Court twice extended Bivens beyond its Fourth Amendment context to permit a Fifth Amendment sex discrimination complaint against a member of Congress, Davis v. Passman (1979) and an Eighth Amendment cruel and unusual punishment claim for a prisoner's inadequate medical treatment, Carlson v. Green (1980). More recently, however, the Rehnquist and Roberts Courts have refused to extend Bivens further and, in the most recent decision Ziglar v. Abbasi (2017), described Bivens as an example of "disfavored judicial activitiy."
Against those odds, Hernández's lawyers faced such obstacles as persuading the courts to allow a suit by an alien and to allow a suit for an injury inflicted on foreign soil. They nevertheless won a victory of sorts in their first go-round at the Court in 2017 with a decision that, instead of dismissing the suit, sent the case back to the Fifth U.S. Circuit Court of Appeals for further consideration of those issues.
Back at the Supreme Court following the Fifth Circuit's second decision to reject Hernández's suit, the conservative justices signaled during oral arguments on Nov. 12 their continued distaste for Bivens. Assigned to write the majority opinion, Justice Samuel Alito Jr. contrived to find some specific reasons for again refusing to extend Bivens to "a new context."
Cross-border shootings have foreign policy implications within the executive branch's domain, Alito reasoned in his opinion in Hernández v. Mesa [Feb. 25, 2020]. He also warned that extending Bivens carried "the risk of undermining border security." With those distinctions, Alito and the four other conservatives had no need to overrule Bivens, but in a concurring opinion Justices Clarence Thomas and Neil Gorsuch said they would have been willing scrap Bivens entirely.
Writing for the four liberal justices, Ginsburg poked holes in Alito's reasoning, but to no avail. She closed by noting the warning from former Border Patrol officials that without civil liability, there would be "no meaningful deterrent to abuse at the border." In short, Ginsburg concluded, "it is Bivens or nothing."
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