Hernandez v. Mesa
Whether federal courts should recognize a damages claim under Bivens if plaintiffs plausibly allege that a rogue federal law enforcement officer violated clearly established Fourth and Fifth Amendment rights for which there is no alternative legal remedy.Advocates
- Stephen I. Vladeck, for the petitioners
- Randolph J. Ortega, for the respondent
- Jeffrey B. Wall, for the United States, as amicus curiae, supporting the respondent
Hernandez v. Mesa addresses a tragic sequence of events in which Border Patrol agent Jesus Mesa, while standing on US soil, shot and killed Sergio Hernandez, a 15-year-old Mexican boy who had been just across the border on Mexican territory when Mesa’s bullet hit him. Hernandez’s family filed a lawsuit for damages against Mesa, arguing that in killing Hernandez, Mesa had violated Hernandez’s Fourth and Fifth Amendment rights.
No one doubts Hernandez’s family would have a legitimate claim against Mesa if the latter had only been standing on US soil. The big question in the case is whether there can be a damages remedy for a killing by a government agent where the perpetrator stood on U.S. land, but the victim was on the other side of the border.
Resolution of this issue hinges primarily on the status of damage remedies under the 1971 case of Bivens v. Six Unknown Federal Agents. But that in turn depends in considerable part on whether the Fourth and Fifth Amendments constrain US government actions that harm people who are neither US citizens nor currently present on US territory.
University of Texas law Professor Steve Vladeck, counsel for the plaintiffs, did a very impressive job in his oral argument: I have no significant quibbles with what he said. But in one key place, I would have augmented the argument somewhat.Hernandez v. Mesa on Oyez: https://www.oyez.org/cases/2019/17-1678