Shot on the Wrong Side of the Border

Natalia Trotter, Associate Member, University of Cincinnati Law Review

Introduction

As the Executive Branch turns towards increasing enforcement on the U.S.-Mexico border, permitting non-citizens to sue border patrol agents in cases of police violence could prove a useful tool for deterring the use of excessive force by federal entities.[1] Although border patrol officers are tasked with detaining aliens entering the country unlawfully, their job does not entail using excessive force against non-violent, unarmed immigrants. When the border patrol is involved in incidents of cross-border violence, agents should not be permitted to escape liability because of a judicial refusal to extend constitutional protections to persons injured on the Mexican side of the border. Since the Supreme Court held in Hernandez v. Mesa that a determination about whether a claim may be brought against a federal agent is antecedent to a constitutional analysis, the Fifth Circuit on remand should recognize a right of action for damages against federal officers and permit injured non-citizens to bring claims against border patrol agents.[2]

Facts of Hernandez v. Mesa

In June of 2010, fifteen-year-old Sergio Adrian Hernández Güereca and a group of his friends were playing in the “cement culvert that separates El, Paso, Texas, from Ciudad Juarez, Mexico.”[3] As a part of their game, the youth would run onto the U.S. side of the border, “up the embankment” to touch the fence barring entrance to the United States.[4] While they were playing, Jesus Mesa Jr., a U.S. Border Patrol Agent, arrived on the scene and detained one of Hernandez’s friends in United States territory.[5] Hernandez was able to make it back across the border without detention, but after Hernandez crossed into Mexico, Mesa took out his gun and shot him in the face, killing him.[6] During the investigation that ensued, the Department of Justice claimed that smugglers, attempting to cross the border, were throwing rocks at Mesa and he reacted in self-defense.[7] Although it is unclear whether or not rocks were actually hurled at Mesa, it does appear that Hernandez was not the source of the rocks and that he “was unarmed and unthreatening at the time” of the shooting.[8] Claiming self-defense, the DOJ and the attorney general’s office decided that there [was] insufficient evidence to pursue prosecution of the CBP agent for a federal homicide offense or for a federal civil rights violation.[9]

Legal Background of Hernandez

Although the DOJ and the prosecutor’s office failed to bring criminal charges against Mesa, Hernandez’s parents sued in civil court seeking damages based on the alleged violation of their son’s Fourth and Fifth Amendment rights.[10] While federal agents are generally protected from liability, Hernandez’s parents asserted standing to sue the federal border patrol agent for constitutional violations under Bivens v. Six Unknown Federal Narcotics Agents.[11] In Bivens, the Supreme Court recognized that a cause of action could arise due to a federal agent’s violation of the Fourth Amendment.[12] Ignoring Bivens, the Fifth Circuit dismissed Hernandez’s Fourth and Fifth Amendment claims.[13] On hearing the case, the Supreme Court placed Bivens at the forefront of the discussion, claiming that the question of “whether the parents of the victim . . . may assert claims for damages against the agent under Bivens” was “antecedent” to the other constitutional questions presented.[14] Finding that Ziglar v. Abbasi limited the scope of applicability of Bivens, the Court refused to answer the Fourth and Fifth Amendment questions and remanded the case to the Fifth Circuit to decide if Hernandez’s claim still applied under Bivens.[15]

Attempting to limit Bivens as much as possible, the Court highlighted in Ziglar that “three cases—Bivens, Davis, and Carlson—represent the only instances in which the Court has approved of an implied damages remedy under the Constitution.”[16] While Bivens addressed a claim against a federal narcotics agent for a Fourth Amendment violation of the search and seizure provision, Davis involved an administrative assistant who brought suit against a Congressman claiming gender discrimination as a violation of the Due Process Clause of the Fifth Amendment.[17] Carlson on the other hand involved an Eighth Amendment cruel and unusual punishment suit where a federal prison guard failed to provide the prisoner with his asthma medication.[18] These three cases represent the only instances in which the Court has extended the implied right of action to federal agents.[19]

Favoring a strong legislative role in determining federal entity liability, the Court in Ziglar created a two-part inquiry for deciding whether a case should fall under the limited implied right of action under Bivens.[20] First, a court must determine “whether a case presents a new Bivens context” claim based on factors such as officer rank, the constitutional question, the “extent of judicial guidance,” intrusion into the separation of powers, or other considerations not addressed in the three Bivens cases. Second, a court should decide whether “special factors,” would point to Congress, rather than the judiciary, as the proper entity to consider and weigh the costs and benefits of allowing a damages action to proceed.[21]

Legal Analysis of Federal Agent Liability

Since the case was remanded to the Fifth Circuit, the lower court must decide whether Hernandez extends Bivens to a new context and whether the judicial branch is best suited for determining liability. Although the Court in recent years has stated that “expanding the Bivens remedy is now a ‘disfavored’ judicial activity,” the Fifth Circuit should still find in favor of extending federal liability to the situation in Hernandez.[22] First, the Fifth Circuit should conclude that Hernandez presents a new Bivens context claim. Although Hernandez and Bivens both involved Fourth Amendment questions, the facts of the two cases, along with the federal entities involved, are very different. In Hernandez, a border patrol agent shot a Mexican citizen across the border, while in Bivens, a federal narcotics agent conducted an unreasonable search and seizure of the plaintiff’s home. The extent of judicial guidance in both cases is different since search and seizure cases have been widely litigated while the Hernandez case presents a new constitutional inquiry. Similarly, the facts in Davis and the Eighth Amendment claim in Carlson are too different from Hernandez for that case to fit well into either context. Because of the disparities in constitutional claims, factual scenarios, and judicial guidance, the court should find that Hernandez presents a new Bivens claim.

If the court were to decide that Hernandez extends Bivens to a new context, it must then determine if any special factors bar the judiciary from determining that an implied right of action exists against the federal agents. Ziglar points to a number of economic and governmental concerns that must be considered when permitting claims against federal officials.[23] One special consideration highlighted by the court in Ziglar is the economic cost, including the litigation expenses, which the government would incur.[24] The economic factor in Hernandez is not so broad that the judiciary would be unable to properly address the question. Although Congress is better suited for analyzing cases where the federal government could incur huge liability if an implied right of action were permitted, Hernandez involves one suit of an individual family suing an officer. Although cross-border shootings do occur, their relatively rare frequency indicates that allowing a right of action against border patrol agents will not produce a heavy financial burden on the government. In addition to the economic aspect, another special factor pointed to in Ziglar is that the purpose of Bivens is to deter the officer, but not to create liability for superiors.[25] Hernandez fits into this context since the suit in Hernandez is brought solely against the individual officer and does not implicate the United States Border Patrol as a whole. A third special factor involves situations where the claims would call into question the formulation and implementation of a general policy.[26] This concern does not apply to Hernandez since it is not a general policy to allow border patrol agents to shoot unarmed, non-citizens on the Mexican side of the border. Rather than involving an entity-wide policy, the claim in Hernandez addresses individual unconstitutional action. Lastly, a special factor that would require congressional rather than judicial inquiry are situations of national security.[27] Unlike in Ziglar where the federal agency was addressing the aftermath of September 11, 2001, Hernandez did not implicate national security whatsoever. Rather, this case involved a single act of violence that did not threaten the United States in any way.[28] Therefore, the court should find that there are no special economic, policy, or national security factors barring the judicial determination to extend Bivens to Hernandez.

Policy Implications

Refusing non-citizens killed by border patrol on the Mexican side of the border the right to sue federal officers would leave families without any judicial recourse and do nothing to discourage abuse within federal law enforcement agencies. Although cases of cross-border violence are not often highlighted in the media, court documents indicated that “in a recent five-year span, border agents shot across the border at least ten times, killing a total of six Mexicans on Mexican soil.”[29] Since Mexican courts do not have jurisdiction to sue U.S. federal officers, a non-citizen family’s only recourse is to sue in the U.S. federal court system. If denied the right to pursue a claim, a family, such as the Hernandez family, would be unable to receive any damages for the loss of their family member. In the present case, if Mesa shot Hernandez on the U.S. side of the border, approximately fifteen feet from where he was actually killed, the family could have sued the officer in U.S. federal court. Basing a family’s access to relief on a few feet of distance takes the attention away from the act itself and places it on an imaginary line. In addition, protecting officers from liability, based solely on the location of the victim, provides an opportunity for agents to use excessive force against immigrants and escape paying damages. Far from advocating the use of proportional force, the lack of consequences could result in a greater number of cross-border shootings. The court, when deciding whether to extend Bivens to Hernandez, should take into consideration the implications for current affected families and the deterrence effect of tempering federal law enforcement action.

Conclusion

So as to provide families with access to justice and deter officers from using excessive of force, the Fifth Circuit should follow the steps in Ziglar and find that Bivens extends to the context presented in Hernandez and that the judiciary is the correct branch to determine federal agent liability. The court should provide non-citizens, injured by border patrol agents on the Mexican side of the border, with the right of action against federal agents.

[1] Executive Order: Border Security and Immigration Enforcement Improvements, The White House: Office of the Press Secretary (Jan 25, 2017) https://www.whitehouse.gov/the-press-office/2017/01/25/executive-order-border-security-and-immigration-enforcement-improvements.

[2] Hernandez v. Mesa, 137 S. Ct. 2003, 2004 & 2006 (2017) citing Correctional Services Corp. v. Malesko, 534 U.S. 61, 66, 122 S. Ct. 515, 151 L. Ed. 2d 456 (2001).

[3] Hernandez 137 S. Ct. at 2005.

[4] Id.

[5] Id.

[6] Id.

[7] Geneva Sands, Federal Officials Close Investigation into the Death of Sergios Hernandez-Guereca, The United States Department of Justice, (Apr 27, 2012) https://www.justice.gov/opa/pr/federal-officials-close-investigation-death-sergio-hernandez-guereca.

[8] Supreme Court hears case of teen shot dead in Mexico by border agent in US, ABC News, (Feb 21, 2017, 8:28 AM) http://abcnews.go.com/US/supreme-court-hear-case-mexican-teenager-killed-cross/story?id=45621119.

[9] Geneva, https://www.justice.gov/opa/pr/federal-officials-close-investigation-death-sergio-hernandez-guereca.

[10] U.S. Const. amend. IV; U.S. Const. amend. V.

[11] 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed.2d 619 (1971).

[12] Id. at 391-392.

[13] Hernandez 137 S. Ct. at 2006.

[14] Id. at 2004 & 2006.

[15] Hernandez 137 S. Ct. at 2006; Ziglar v. Abbasi, 137 S. Ct. 1843 (2017).

[16] Ziglar, 137 S. Ct. at 1855.

[17] Bivens 403 U.S. at 389-390; Davis v. Passman, 442 U.S. 228, 231, 99 S. Ct. 2264, 2269 (1979).

[18] Carlson v. Green, 446 U.S. 14, 17, 100 S. Ct. 1468, 1471 (1980).

[19] Ziglar, 137 S. Ct. at 1855.

[20] Ziglar, 137 S. Ct. at 1859-1860.

[21] Id. at 1857-1859.

[22] Ziglar, 137 S. Ct. at 1857 quoting Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S. Ct. 1937, 173 L. Ed.2d 868 (2009).

[23] Ziglar, 137 S. Ct. at 1856

[24] Id.

[25] Id. at 1860.

[26] Id.

[27] Id. at 1861.

[28] Id.

[29] Supreme Court hears case of teen shot dead in Mexico by border agent in US, ABC News, (Feb 21, 2017, 8:28 AM) http://abcnews.go.com/US/supreme-court-hear-case-mexican-teenager-killed-cross/story?id=45621119.