VIOLENCE plagues America’s border with Mexico. The Border Network for Human Rights, a non-profit organisation, documents “at least 90 people [who] have died as the result of an encounter” with American personnel between January 2010 and July 2019. The parents (pictured) of one of those victims, a 15-year-old boy named Sergio Adrián Hernández Güereca, were present for Hernández v Mesa, a Supreme Court oral argument on November 12th inquiring into what remedy families have—if any—to hold border agents accountable when they use indiscriminate force.
The tragic story of Hernández’s death is familiar to the justices. They first considered his case two years ago. In 2010, the boy had been playing on Mexican soil when Jesus Mesa, an American border-patrol agent, shot him in the face. Unarmed, the boy had run up a concrete culvert on the border with a friend to touch the American fence. Mr Mesa grabbed the other boy, and after Hernández dashed back to the Mexican side he was killed by Mr Mesa’s bullet. In 2017, the justices called his death “a heartbreaking loss of life” but sent the case back down to the Fifth Circuit Court of Appeals to determine whether—given a recent Supreme Court ruling in Ziglar v Abbasi—the family had a “cause of action” (a legal pathway) to sue the agent.
When the Fifth Circuit again ruled against the family, the Supreme Court agreed to hear the case for a second time. The question is straightforward—can the Hernandez family sue Mr Mesa for killing their unarmed son?—but the matter is technical. In 1971, the Supreme Court ruled in Bivens v Six Unknown Named Agents that a man could sue federal agents who had—without a warrant—broken into his home, handcuffed him and arrested him on drug charges before questioning and strip-searching him. Mr Bivens, the court ruled 6-3, could sue the agents for violating his Fourth Amendment rights. Since Bivens, the court has generally been loth to expand the right to sue for violations of constitutional rights. In Abbasi, the court denied such an opportunity to several men of Middle Eastern origin who tried to sue federal officials for being wrongfully detained in the aftermath of the September 11th attacks. Lawsuits, Abbasi held, should not be available in a “new context” or when “special factors counseling hesitation” exist—unless Congress has specifically created a remedy via legislation.
Arguing for the boy’s parents, Stephen Vladeck presented the right to sue Mr Mesa as just the kind of legal remedy for “law enforcement overreach” that Bivens sanctioned in 1971 and that Abbasi reinforced. The ability to hold individual law-enforcement officers accountable for egregious conduct is important as a deterrent, he said, and falls in line with an American tradition “going all the way back to the founding”. In cases like Hernández’s, it’s “Bivens or nothing”, Mr Vladeck pointed out: there are no other avenues available for holding abusive agents to account.
Given the constraints of Abbasi, Mr Vladeck had to show that permitting his clients to sue Mr Mesa does not represent a “new context” and poses no special considerations counselling against the remedy. Here he ran into some resistance. Chief Justice John Roberts noted that there has been “diplomatic correspondence between the Mexican government and our government” in Hernández’s case—a “foreign relations” implication that seems to make it “a new context”. Justice Neil Gorsuch pounced on what he saw as a line-drawing conundrum: “I can think of a lot of cases”, he said, involving harm to foreign nationals “that can occur transnationally”—hinting that military operations or drone strikes on foreign soil may suddenly subject American agents to untold lawsuits. Not so, Mr Vladeck responded. The clearest context of Bivens is law-enforcement, not “combat operations”, he said. After their testy exchange, Justice Gorsuch’s body language suggested an unwillingness to hear Mr Vladeck out: he spent much of the rest of the hearing gazing down, visibly exhaling and resting his eyes.
The pair of lawyers arguing on the other side—Randolph Ortega for Mr Mesa; Jeffrey Wall for the federal government—seemed not to have coordinated their strategies before the hearing. Mr Ortega staked his presentation on two distinctions: Bivens remedies should be available to American citizens, whatever side of the border they may be on, and to foreign nationals on American soil. But a Mexican boy standing a few inches south of the border has no claim, he insisted. Under relentless questioning from the justices, Mr Ortega’s thesis looked increasingly shaky. At long last, an exasperated Justice Elena Kagan pressed him to explain “why, when we just moved three inches over” the border “there’s a different answer” as to whether a remedy is available. Mr Ortega’s answer: “I believe that the border is real. It’s a real line. And it can’t be extended”.
Some justices found this answer wanting. If there are special considerations involving foreign affairs or national security, Justice Kagan noted, those would apply equally to a shooting of a Mexican national on the American side of the border (where, Mr Ortega said, Bivens actions would be fine) so what is especially worrisome about letting Hernández’s family sue Mr Mesa? When Mr Wall rose, he explicitly noted his disagreement with his colleague. Bivens lawsuits shouldn’t be available to the Hernandez family, he said, even if their son had been standing three inches inside American soil, because the international implications would still counsel against such a remedy.
The highlight of the hearing may have been Justice Kagan’s grinding questioning of Mr Wall and his indefatigable responses. The proper forum for addressing delicate questions of misdeeds at the border, he said, is “Congress…not the courts”. For the Supreme Court to extend Bivens to claims like the Hernandez’s would undercut the “importance of caution and judicial modesty in this area”. The caution Mr Wall urged in his stint at the lectern seemed to persuade four conservative justices that a Bivens remedy for a cross-border shooting would be a new court-recognised cause of action and should be avoided. Meanwhile, Mr Vladeck had a receptive audience among the four liberal justices for his claim that denying relief to Hernández’s family—and to families facing similar tragedies—would result in “a functional absolute immunity” for rogue agents on America’s borders. The ruling seems destined to come out 5-4 and hinge on Justice Brett Kavanaugh, who was alternatively receptive to and critical of both sides.