Hernandez v. Mesa: Bivens action cannot be brought for cross-border shootings; Thomas would eliminate Bivens actions altogether

The parents of a child shot by a U.S. Border Patrol agent across the U.S.-Mexico border cannot bring a Bivens action for civil damages against the officer, the U.S. Supreme Court ruled February 25 in Hernandez v. Mesa.
 
Sergio Adrian Hernandez Guereca, a 15-year-old Mexican national, was shot and killed by a U.S. Border Patrol agent across a concrete drainage culvert that divides the border in El Paso, Texas.  Hernandez’s parents sued the agent, alleging he violated Hernandez’s Fourth and Fifth Amendment rights.
 
The parents claimed their son had been playing a game by running back and forth across the culvert.  The agent claimed Hernandez was involved in an illegal border crossing, and had thrown rocks at the agent.
 
The lower courts refused to recognize a Bivens claims for cross-border shootings, and dismissed the case. 
 
The Supreme Court affirmed the dismissal, in a 5-4 opinion.
 
Bivens v. Six Unknown Fed. Narcotics Agents (1971) allowed plaintiffs to bring civil damage claims against federal agents for certain violations even though no federal statute authorized such claims. 
 
Bivens arose at a time when federal courts “assumed it to be a proper judicial function to provide remedies” not expressly set out in federal statutes, the Court said.  Since that time, the Court has limited extension of Bivens, because doing so encroaches on “legislative power” embodied in separation of powers.
 
“A federal court’s authority to recognize a damages remedy must rest at bottom on a statute enacted by Congress … and no statute expressly creates a Bivens remedy,” the Court said. 
 
In deciding whether to extend Bivens, a court asks, first, whether the claim arises in a “new context” or involves a “new category of defendants,” and if so, whether there are any “special factors” that “counsel hesitation about granting the extension,” the Court said.
 
Here, the Bivens claim arises in a “new context,” the Court said, and there are multiple factors that counsel against extension, including foreign relations with Mexico and national security interests about regulating agents along the border.
 
Foreign policy and national security decisions are matters for the legislative and executive branches, not the judiciary, the Court said.
 
Further, “Congress has repeatedly declined to authorize the award of damages for injuries inflicted outside our borders,” the Court said.  “Congress, which has authority in the field of foreign affairs, has chosen not to create liability in similar statutes, leaving the resolution of extraterritorial claims brought by foreign nationals to executive officials and the diplomatic process.”
 
“When evaluating whether to extend Bivens, the most important question is ‘who should decide’ whether to provide for a damages remedy, Congress or the courts?” the Court concluded.  “The correct answer most often will be Congress.”
 
Thomas would eliminate Bivens
 
Justice Thomas concurred, but went further to say that he would overrule Bivens entirely.
 
“The time has come to consider discarding the Bivens doctrine altogether,” he said.  “The foundation for Bivens – the practice of creating implied causes of action in the statutory context – has already been abandoned.” 
 
“And the Court has consistently refused to extend the Bivens doctrine for nearly 40 years, even going so far as to suggest that Bivens and its progency were wrongly decided,” he said.  “Stare decisis provides no veneer of respectability to our continued application of these demonstrably incorrect precedents.”
 
Justice Ginsburg, joined by Justices Breyer, Sotomayor and Kagan, dissented