High Court Border Shooting Case May Turn On Swing Vote

By Y. Peter Kang | May 31, 2019, 7:37 PM EDT

The conservative-leaning majority of the U.S. Supreme Court will likely shut down a suit accusing a federal border patrol agent of wrongfully killing a Mexican teenager in a border shooting incident, attorneys say, but it would take just one conservative justice to create an upset.

On Tuesday, the nation's highest court said it will resolve a circuit split and decide whether Jesus C. Hernandez, the father of the dead teen, can pursue civil damages under the 1971 Supreme Court ruling Bivens v. Six Unknown Named Agents , which allows people to collect money damages if their constitutional rights have been violated by a federal officer and no alternative legal remedy exists.

The full Fifth Circuit decided against extending the Bivens remedy to the cross-border shooting in this case, holding that it would "interfere with the political branches' oversight of national security and foreign affairs." Meanwhile, the Ninth Circuit in a very similar case found that a border patrol agent was not immune to liability and allowed a dead teenager's mother to proceed with a damages claim.

While seen as a close call, court watchers predict that the justices will ultimately side with the Fifth Circuit. Bivens claims have been an unpopular doctrine in the Supreme Court in recent years, according to Shira A. Scheindlin, of counsel for Stroock & Stroock & Lavan LLP and a former federal judge for the Southern District of New York.

"I wouldn't be surprised if it turns out 5-4 affirming the Fifth Circuit," she said. "The Supreme Court has never expanded the Bivens remedy and has rarely allowed Bivens claims to move forward."

Scheindlin said the justices have been keen on expanding qualified immunity for government officials who are purportedly making discretionary decisions, "to the point that Bivens is ephemeral."

"They aren't very receptive of Bivens claims and they are very expansive in defining qualified immunity," she said.

Although the smart money says the two conservative justices appointed by President Donald Trump — Justices Neil M. Gorsuch and Brett M. Kavanaugh — will rule to affirm the Fifth Circuit, it's still an open question. For one, no one knows which justices made up the required minimum of four votes to grant certiorari  and the answer to that could speak to the positions held by the court's newest members.

"I'm a little puzzled as to who's voting for cert here," said Andrew Kent, a law professor at Fordham University who specializes in constitutional and foreign relations law. "If the liberal justices are voting for cert, they must know about a Kavanaugh or Gorsuch vote that isn't apparent to the outside world."

But if the four cert votes largely originated from the conservative justices, the case will likely end in an affirmation of the Fifth Circuit, Kent said.

"I would say it's 60-40 that they affirm the Fifth Circuit," he said. "We're talking about two new justices and I probably know how they are going to vote but you can't be sure. This will be the first time Kavanaugh and Gorsuch will be confronting this particular constellation of issues."

Gregory Sisk, a professor at the University of St. Thomas School of Law and an expert on civil litigation with the federal government, said if the Supreme Court upholds the Fifth Circuit's ruling, wronged individuals will be denied justice.

"This is one of the most powerful types of cases: a young person losing his life where the justice system is not set up to allow recoveries," said Sisk, who lodged an amicus brief backing the Hernandez family.

"As alleged, an unarmed young man of Mexican citizenship a few yards inside of Mexico who was offering no threat, who had done nothing wrong, was just shot dead," Sisk said. "The injustice is the court saying, 'Too bad, there is nothing we can do about it.' It's the most egregious of injustices."

Sisk said if this were any other type of injury aside from death he would probably predict a Fifth Circuit affirmation.

"But given how compelling this scenario is, it would just take one justice to change his mind and vote to say, 'This is the extreme situation that we can't remain silent as a court,'" he said. "In terms of odds, I can't put numbers on it."

The case stretches back to 2010, when U.S. Customs and Border Protection agent Jesus Mesa Jr. shot Sergio Adrian Hernandez Guereca dead across the U.S.-Mexico border. According to his family, the boy was playing with his friends, daring each other to touch the border fence between Juarez, Mexico, and El Paso, Texas, when Mesa fired two shots across the border and fatally shot the boy in the face. The lawsuit says the teen was unarmed.

The boy's family sued in Texas federal court, claiming Mesa violated the teen's Fourth and Fifth Amendment rights. The court dismissed the suit, and the full Fifth Circuit later upheld the dismissal, agreeing that Mesa was shielded from civil liability under the qualified immunity doctrine.

But the Supreme Court reversed that holding, reasoning that immunity can't be granted based on facts not known to an officer and that Mesa could not have known the boy was a Mexican citizen without substantial connections to the U.S. when he shot him.

The justices remanded the case to the Fifth Circuit, telling it to reconsider Hernandez's Fourth Amendment and Bivens claims in light of the high court's 2017 decision in Ziglar v. Abbasi , which held that Bush administration officials could not be held liable under Bivens for civil rights abuses committed during the post-9/11 investigation.

On remand, the Fifth Circuit in March 2018 declined to expand the Bivens remedy to this case.

"The threat of Bivens liability could undermine the Border Patrol's ability to perform duties essential to national security," the court said. "Implying a private right of action for damages in this transnational context increases the likelihood that Border Patrol agents will 'hesitate in making split second decisions.'"

Hernandez again appealed to the Supreme Court in June 2018, arguing that the Fifth Circuit had misapplied the Abbasi ruling.

"If the Court of Appeals' analysis is left intact, there will be little deterrent for law enforcement officers in Louisiana, Mississippi, and Texas — to say nothing of other jurisdictions that choose to follow [the Fifth Circuit's decision] — with regard to uses of excessive force," the petition said.

The Supreme Court's decision to revisit the case could simply be a matter of the high court's desire to clarify its previous ruling, as it has done in other cases that have taken multiple trips to the high court, according to Mahesha P. Subbaraman of Subbaraman PLLC, an attorney representing a nonprofit civil rights group that intends to lodge an amicus brief backing the Hernandez family.

Or it could be that the justices are willing to recognize a new type of Bivens claim, Subbaraman said.

"The court is at an unusual moment. It has a solid bloc of liberal justices, but among the conservatives, the members are concerned with different things," he said. "This term we've already seen a number of decisions where the four liberal justices are on one side and one conservative justice joins those four justices. It's entirely possible you could end up with a 5-4 decision, with four liberals and one conservative end up charting that path."

Hernandez is represented by Stephen I. Vladeck of the University of Texas School of Law, Robert C. Hilliard and Marion M. Reilly of HMG Law Firm, Steve Shadowen of Hilliard & Shadowen LLP, Leah Litman of the University of California, Irvine, School of Law and Cristobal M. Galindo of Cristobal M. Galindo PC.

Mesa is represented by Randolph J. Ortega and Gabriel Perez of Ortega McGlashan Hicks & Perez PLLC and Louis Elias Lopez Jr. of Louis Lopez Law.

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 and Kevin Penton. Editing by Kelly Duncan and Michael Watanabe.

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