Justices Shut Courthouse Doors On Border Patrol Victims

By Y. Peter Kang | February 27, 2020, 6:48 PM EST

The U.S. Supreme Court's recent decision to toss a suit over a Mexican teen's fatal shooting by a Border Patrol officer effectively leaves similarly situated families with no legal recourse for constitutional rights violations, experts said.

In a 5-4 decision Tuesday, the justices said Jesus C. Hernandez, the father of the slain 15-year-old boy, can't pursue civil damages under the 1971 Supreme Court ruling Bivens v. Six Unknown Named Agents , which allows people to collect monetary damages if their constitutional rights have been violated by a federal officer and no alternative legal remedy exists. Hernandez's son was unarmed and playing along the Mexican side of the border near El Paso, Texas, when he was shot and killed by agent Jesus Mesa Jr.

The U.S. Constitution's separation of powers doctrine cautions against extending the Bivens remedy to new contexts, and a cross-border shooting is a "markedly new" context, Justice Samuel Alito wrote for the majority, consisting entirely of the court's conservative bloc. The majority also held that possible national security and foreign affairs implications work against allowing a damages remedy in cross-border shooting cases.

Border Patrol agents, who guard against illegal entry and trafficking across the U.S.-Mexico border, have a "clear and strong connection to national security," Justice Alito wrote. "Congress's decision not to provide a judicial remedy does not compel us to step into its shoes."

Constitutional law experts and civil rights advocates said the decision, although not surprising given the high court's reluctance over the past two decades to extend the Bivens remedy to other contexts, was nonetheless troubling because it removes the judicial check from the civil rights equation.

"As a consequence of the court's decision, the Hernandez family and other similarly situated families in cross-border shootings will be left out in the cold," said Mahesha P. Subbaraman of Subbaraman PLLC, an attorney representing nonprofit civil rights group Restore the Fourth.

Subbaraman said Justice Ruth Bader Ginsburg's dissent demonstrated that there is no legal remedy for these families now that the court has concluded that Bivens does not apply to such cross-border incidents.

Justice Ginsburg's dissent, which was joined by the other three liberal justices, said the cross-border shooting context isn't new and questioned whether national security would actually be hindered by allowing damages to be collected in these instances.

"It is all too apparent that to redress injuries like the one suffered here, it is Bivens or nothing," Ginsburg wrote. "I resist the conclusion that 'nothing' is the answer required in this case."

Kelsi Brown Corkran, a partner at Orrick Herrington & Sutcliffe LLP, said the majority's ruling is devastating for families seeking legal redress in similar cases.

"It is undisputed that a Border Patrol agent shot an unarmed child in the head running in the opposite direction on the Mexican side of the border," she said. "The court's decision means that there will be no accountability for something that we would recognize as murder in any domestic context. … The injustice is so extraordinary it's hard to get your head around it."

Corkran, who helped draft an amicus brief for a group of former U.S. Customs and Border Protection officials in support of Hernandez, said there has been increased militarization of the Border Patrol over the past two decades, with some agents viewing any Mexican near the border as an enemy combatant.

CBP officers killed at least 97 people at the border from 2003 to May 2018, including 28 U.S. citizens and six children, and at least eight people were on the Mexican side of the border when shot, according to the group's brief. Only one agent was prosecuted and none were disciplined, the brief said.

The militarization of the Border Patrol has also increased after President Donald Trump signed a 2018 memo that allowed U.S. military working with the Border Patrol to use lethal force to deter migrant caravans from Central America, Corkran said.

"Given the increased militarization under the Trump decision, combined with this decision which essentially says Border Patrol is allowed to use violence with impunity, I think it's safe to say that we will see this escalated," she said.

The timing of the high court ruling is also concerning given the Trump administration's highly politicized and militarized rhetoric regarding border control, said Lee Gelernt, deputy director of the American Civil Liberties Union's Immigrants' Rights Project.

"The administration is telling CBP officers in not-so-subtle ways to think of themselves as the military," he said. "Once that happens, there is the real possibility of additional abuses occurring, and now there is no civil check. The only check is the government checking itself, and that's not the way a country governed by the rule of law should work."

Experts said one silver lining in Tuesday's decision, however, was that the Bivens precedent was not struck down altogether, as Justice Clarence Thomas had suggested in a concurring opinion that was joined by Justice Neil Gorsuch.

"I think that is very important, because there are cases now in which the victim was on U.S. soil and crossed the border and was killed," Gelernt said. "Nothing in the opinion suggests those cases can't go forward. The arguments the Trump administration put forward would have eliminated all cases that occurred on both sides of the border, and it's important that the court didn't adopt those arguments."

Gregory Sisk, a professor at the University of St. Thomas School of Law and an expert on civil litigation with the federal government, said it was notable that the three other conservative justices did not join Justice Thomas' concurrence.

"The fact that the other three in the majority chose not to say that and predicated their decision on national security and border policy concerns, that does, to some extent, potentially limit the significance of this [ruling]," he said. "I had feared that the decision would be even more of a death knell against claims against federal officers, but this falls short of that."

Mesa is represented by Randolph J. Ortega and Gabriel S. Perez of Ortega McGlashan Hicks & Perez, and Louis Lopez of Louis Lopez Law.

Hernandez is represented by Stephen I. Vladeck of the University of Texas School of Law, Robert C. Hilliard and Marion M. Reilly of Hilliard Martinez Gonzales LLP, Leah M. Litman of the University of Michigan Law School, Steve Shadowen, Matthew C. Weiner and Nicholas Shadowen of Hilliard & Shadowen LLP, and Cristobal M. Galindo of The Law Offices of Cristobal M. Galindo.

The case is Jesus C. Hernandez et al. v. Jesus Mesa Jr., case number 17-1678, in the Supreme Court of the United States.

--Additional reporting by Suzanne Monyak. Editing by Aaron Pelc and Alanna Weissman.

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