by David Reutter

The United States Supreme Court vacated and remanded a Fifth Circuit Court of Appeal's rehearing en banc decision to uphold a federal district court's dismissal of a civil suit brought against Jesus Mesa, a U.S. Border Patrol agent, for a fatal cross-border shooting. The Supreme Court remanded the case to the Fifth Circuit to address application for Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) in light of its recent decision in Ziglar v. Abbasi.

Jesus Hernandez was a 15-year-old Mexican who was shot and killed by Mesa in a culvert at the U.S.-Medico border. Hernandez's parents brought a suit against Mesa under Bivens, alleging that the shooting violated Fourth and Fifth Amendment protections.

The district court granted Mesa's motion for dismissal, based on the Department of Justice's (DOJ's) determinations that Mesa did not act inconsistently with his agency's policies on use of force because the shooting involved detention of smugglers attempting an illegal border crossing; there was insufficient evidence that Mesa acted willfully to break the law; and Hernandez could not meet requirements to invoke jurisdiction.

The Fifth Circuit held that Hernandez lacked Fourth Amendment Standing, but his Fifth Amendment rights were violated and Bivens did apply. However, that decision was stricken on rehearing en banc and replaced with a unanimous upholding of the district court's dismissal.

The Supreme Court vacated the circuit court's order and remanded the case back to the Fifth Circuit for a written determination on the question of how Bivens would apply. Bivens granted a right to sue federal agents alleged to have violated a citizen's constitutional rights. One justice asserted Bivens should not be extended because Hernandez was not a citizen and had no connection to the United States.

Other justices asserted that the culvert is a "limitrophe" or special border-related area with internationally-recognized special treatment which should invoke Fourth Amendment protections to all who enter it.

The Supreme Court held that Mesa did not know if Hernandez was a citizen or was connected to the United States at the time of shooting, and his discovery of no connection--after the incident--is not relevant to the question of qualification immunity. The Fifth Circuit must address the questions of application of Bivens, Fourth, and Fifth Amendment violations, and qualified immunity before the Supreme Court may address them on appeal.

The Supreme Court also noted that it had addressed "special factors counseling hesitation," in application of Bivens in its Abbasi decision, so it remanded the case back to the Fifth Circuit for reconsideration under guidance of Abbasi: as a matter of first instance.

See: Hernandez v. Mesa, No. 15-118, 582 U.S. (2017).

 

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