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Hernandez v. Mesa (2016)

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Supreme Court of the United States
Hernandez v. Mesa
Reference: 15-118
Issue: Fourth Amendment
Fifth Amendment
Term: 2016
Important Dates
Argued: February 21, 2017
Decided: June 26, 2017
Outcome
Fifth Circuit Court of Appeals vacated and remanded
Vote
Per curiam
Majority
No public vote was released.
Dissenting
Clarence Thomas • Ruth Bader Ginsburg • Stephen Breyer


Hernandez v. Mesa is a case argued during the October 2016 term of the U.S. Supreme Court. Argument in the case was held on February 21, 2017. The case came on a writ of certiorari to the United States Court of Appeals for the 5th Circuit. On June 26, 2017, in an unsigned per curiam opinion, the court vacated and remanded the judgment of the Fifth Circuit Court of Appeals. As the opinion was unsigned and the judgment was for the court, no public vote of the justices was released. The case was argued before Justice Neil Gorsuch was confirmed as a Supreme Court justice; Justice Gorsuch did not participate in the per curiam decision. Justice Clarence Thomas filed a dissenting opinion. Justice Stephen Breyer filed a dissenting opinion that was joined by Justice Ruth Bader Ginsburg.

In the case, the court vacated the Fifth Circuit's judgment and remanded the case to that court so that the Fifth Circuit might reconsider its ruling in light of the Supreme Court's opinion this term in Ziglar v. Abbasi.

HIGHLIGHTS
  • The case: The parents of a deceased Mexican national minor sought to bring legal action against the Border Patrol agent who was responsible for their son's death, as well as the agent's supervisors and the United States government.
  • The issue: Can a Mexican national bring legal actions against law enforcement agents of the U.S. government under rights claimed under the U.S. Constitution?
  • The outcome: On June 26, 2017, the court vacated and remanded the judgment of the Fifth Circuit Court of Appeals.


    • In brief: In 2010, a United States Border Partol agent, Jesus Mesa, Jr., fatally shot and killed Sergio Hernandez. Hernandez, a 15-year-old minor, was playing in a culvert near the U.S.-Mexico border when Mesa shot and killed him. Mesa fired his weapon from a position inside U.S. territory. Hernandez was killed on Mexican soil. Hernandez's family filed a lawsuit in federal district court against the United States, against Mesa, and against Mesa's supervisors. The district court dismissed all charges, but a panel of the United States Court of Appeals for the 5th Circuit reversed and remanded the district court's dismissal of Hernandez's claims that Mesa violated the Fifth Amendment. The Fifth Circuit heard an appeal of the panel decision en banc. That court affirmed the dismissal of charges against the United States and Mesa's supervisors. The court also affirmed the dismissal of alleged Fourth Amendment violations by Mesa. The en banc court, however, reversed the circuit panel opinion by also dismissing the Fifth Amendment claims against Mesa as well, holding that no case law existed at the time of the shooting that would have informed Agent Mesa that his conduct violated the Fifth Amendment. Argument in the case was held on February 21, 2017.

    You can review the Fifth Circuit's en banc opinion here.[1]

    Click on the tabs below to learn more about this Supreme Court case.

    Case

    Background

    On June 7, 2010, Sergio Hernandez, a 15-year-old Mexican national, was playing with a group of friends near a culvert separating the United States and Mexico. At all times, Hernandez was on Mexican soil. According to a three-judge panel opinion of the Fifth Circuit, "Hernandez and his friends were playing a game that involved running up the incline of the culvert, touching the barbed-wire fence separating Mexico and the United States, and then running back down the incline. As they were playing, United States Border Patrol Agent Jesus Mesa, Jr. arrived on the scene and detained one of Hernandez's friends, causing Hernandez to retreat 'beneath the pillars of the Paso del Norte Bridge' in Mexico to observe. Agent Mesa, still standing in the United States, then fired at least two shots at Hernandez, one of which struck him in the face and killed him."[2]

    Hernandez's family brought 11 various charges against the United States, against Mesa, and against unknown federal employees in federal district court. The United States moved to dismiss all claims made against it, which included all charges except for a claim against Agent Mesa. The outstanding claim against Mesa asserted that he was liable under the U.S. Supreme Court's ruling in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. That case provides for relief under the Fourth and Fifth Amendments when an agent of the United States government uses excessive, deadly force. The district court granted the United States' motion to dismiss.[2]

    Hernandez's family amended their complaint to add four Bivens actions against Mesa's supervisors. In dismissing these claims, the district court held that the supervisors were not personally responsible for any constitutional violations.[2]

    Agent Mesa also moved to have the charges against him dismissed. Mesa argued that, because Hernandez was an alien injured outside of the United States, Hernandez lacked protections under the Fourth and Fifth Amendments. Further, Mesa asserted that he had qualified immunity because the incident occurred during the course and scope of his employment as a border agent for the United States. The district court agreed and dismissed the charges against Mesa, holding that Hernandez could not invoke Fourth Amendment protection as an alien with no voluntary ties to the United States and that excessive force claims could only be assessed under the Fourth Amendment and not under the Fifth Amendment.[2]

    Hernandez appealed to the United States Court of Appeals for the 5th Circuit. In a three-judge panel ruling issued on June 30, 2014, the panel affirmed the district court's ruling dismissing all charges against the United States, against Mesa's supervisors, and of the Fourth Amendment claim against Mesa. The panel, however, reversed and remanded the district court's ruling as it pertained to alleged Fifth Amendment violations against Mesa. The panel held that "border patrol agents exercise their official duties within feet of where the alleged constitutional violation occurred. In fact, agents act on or occasionally even across the border they protect. ... Therefore, in a very blunt sense, Border Patrol agents exercise hard power across the border at least as far as their U.S.-based use of force injures individuals." Based on this interpretation, the panel held that a noncitizen injured outside of the United States through arbitrary official conduct by a law enforcement officer located in the United States can claim Fifth Amendment protections.[2]

    In construing the Fifth Amendment in this way, the panel also determined that Hernandez's Bivens claims against Mesa could be adjudicated. In the panel's opinion, the court agreed to "extend a Bivens action in this specific context in which an individual located abroad asserts a right to be free from gross physical abuse under the Fifth Amendment against federal law enforcement agents located in the United States based on their conscience-shocking, excessive use of force across our nation's borders." The panel went on to state that the facts of the case quashed Mesa's claim of qualified immunity.[2]

    A motion was made for rehearing en banc before the full Fifth Circuit Court of Appeals. That motion was granted. On April 24, 2015, the court affirmed the circuit panel's dismissal of claims against the United States and against Mesa's supervisors. The court also affirmed the circuit panel's dismissal of claims under the Fourth Amendment against Mesa. The en banc court, however, reversed the circuit panel's holding that Hernandez could bring a claim under the Fifth Amendment against Mesa. In the en banc court's opinion, the court asserted,[1]

    “

    The question here is whether the general prohibition of excessive force applies where the person injured by a U.S. official standing on U.S. soil is an alien who had no significant voluntary connection to, and was not in, the United States when the incident occurred. No case law in 2010, when this episode occurred, reasonably warned Agent Mesa that his conduct violated the Fifth Amendment. [3]

    		”

    Petitioners' challenge

    The petitioners, Jesus Hernandez and Maria Guadalupe Guercea Bentacour, both individually and as parents of Sergio Hernandez, challenged the holding of the Fifth Circuit Court of Appeals that the Fourth and Fifth Amendments do not and cannot provide for a remedy in the shooting death of their son by a U.S. Border Patrol agent.

    Certiorari granted

    On July 23, 2015, Jesus Hernandez and Maria Guadalupe Guercea Bentacour, the petitioners, initiated proceedings in the Supreme Court of the United States in filing a petition for a writ of certiorari to the United States Court of Appeals for the 5th Circuit. The U.S. Supreme Court granted Hernandez's certiorari request on October 11, 2016. Argument in the case was held on February 21, 2017.

    Arguments


    Question presented

    Questions presented:

    "1. Does a formalist or functionalist analysis govern the extraterritorial application of the Fourth Amendment's prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States?
    2. May qualified immunity be granted or denied based on facts-such as the victim's legal status-unknown to the officer at the time of the incident?
    In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: 'Whether the claim in this case may be asserted under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971)."[4]


    Audio

    • Audio of oral argument:[5]



    Transcript

    • Transcript of oral argument:[6]

    Outcome

    Decision

    On June 26, 2017, in an unsigned per curiam opinion, the court vacated and remanded the judgment of the Fifth Circuit Court of Appeals. As the opinion was unsigned and the judgment was for the court, no public vote of the justices was released. The case was argued before Justice Neil Gorsuch was confirmed as a Supreme Court justice; Justice Gorsuch did not participate in the per curiam decision. Justice Clarence Thomas filed a dissenting opinion. Justice Stephen Breyer filed a dissenting opinion that was joined by Justice Ruth Bader Ginsburg. In the case, the court vacated the Fifth Circuit's judgment and remanded the case to that court so that the Fifth Circuit might reconsider its ruling in light of the Supreme Court's opinion this term in Ziglar v. Abbasi.[7]

    Opinion

    The opinion for the court was a per curiam opinion, which is an unsigned opinion. In such opinions, unless the court is evenly divided, the votes of the justices are not made public. In the opinion, the court determined that its ruling this term in Ziglar v. Abbasi would inform the Fifth Circuit's opinion in this case. The court directed the Fifth Circuit to review the following considerations:[7]

    “

    With respect to petitioners’ Fourth Amendment claim, the en banc Court of Appeals found it unnecessary to address the Bivens question because it concluded that Hernández lacked any Fourth Amendment rights under the circumstances. This approach—disposing of a Bivens claim by resolving the constitutional question, while assuming the existence of a Bivens remedy—is appropriate in many cases. This Court has taken that approach on occasion. The Fourth Amendment question in this case, however, is sensitive and may have consequences that are far reaching. It would be imprudent for this Court to resolve that issue when, in light of the intervening guidance provided in Abbasi, doing so may be unnecessary to resolve this particular case. ...

    With respect to petitioners’ Fifth Amendment claim, the en banc Court of Appeals found it unnecessary to address the Bivens question because it held that Mesa was entitled to qualified immunity. In reaching that conclusion, the en banc Court of Appeals relied on the fact that Hernández was 'an alien who had no significant voluntary connection to ... the United States.' ... It is undisputed, however, that Hernández’s nationality and the extent of his ties to the United States were unknown to Mesa at the time of the shooting. The en banc Court of Appeals therefore erred in granting qualified immunity based on those facts. ... Mesa and the Government contend that Mesa is entitled to qualified immunity even if Mesa was uncertain about Hernández’s nationality and his ties to the United States at the time of the shooting. The Government also argues that, in any event, petitioners’ claim is cognizable only under the Fourth Amendment, and not under the Fifth Amendment. This Court declines to address these arguments in the first instance. The Court of Appeals may address them, if necessary, on remand.[3]

    		”

    As a result of the court's per curiam opinion. the judgment of the Fifth Circuit was vacated and remanded.

    Concurring opinions

    There were no concurring opinions filed in this case.

    Dissenting opinions

    Justice Clarence Thomas authored a dissenting opinion. In his opinion, Justice Thomas noted that he would answer the question regarding the Bivens claim rather than remand to the Fifth Circuit. Justice Thomas wrote,[7]

    “

    I continue to adhere to the view that Bivens and its progeny should be limited 'to the precise circumstances that they involved.' This case arises in circumstances that are meaningfully different from those at issue in Bivens and its progeny. Most notably, this case involves cross-border conduct, and those cases did not. I would decline to extend Bivens and would affirm the judgment of the Court of Appeals on that basis.[3]

    		”

    Justice Stephen Breyer wrote a dissenting opinion that was joined by Justice Ruth Bader Ginsburg. Justice Breyer noted that he would hold that Hernandez's family had cognizable rights under the Fourth Amendment and would reverse the Fifth Circuit accordingly. Justice Breyer cited six separate reasons why Hernandez was entitled to protections of the Fourth Amendment. He wrote,[7]

    “

    First, the defendant is a federal officer. ...
    Second, the culvert itself has special border-related physical features. ...
    Third, history makes clear that nontechnically speaking, the culvert is the border; and more technically speaking, it is at the least a special border-related area (sometimes known as a 'limitrophe' area...). ...
    Fourth, a jointly organized international boundary commission built, and now administers, the culvert. ...
    Fifth, international law recognizes special duties and obligations that nations may have in respect to 'limitrophe' areas. ...
    Sixth, not to apply the Fourth Amendment to the culvert would produce serious anomalies. ...

    These six sets of considerations taken together provide more than enough reason for treating the entire culvert as having sufficient involvement with, and connection to, the United States to subject the culvert to Fourth Amendment protections. I would consequently conclude that the Fourth Amendment applies.[3]

    		”

    The opinion




    Filings

    The court granted Hernandez's certiorari request on October 11, 2016.

    Merits filings

    Parties' briefs

    • Jesus Hernandez et al., the petitioners, filed a merits brief on December 2, 2016.
    • The United States, filing as a federal respondent in the case, filed a merits brief on January 9, 2017.
    • Jesus Mesa, the respondent, filed a merits brief on January 9, 2017.
    • Hernandez et al. filed a reply brief on the merits on February 8, 2017.

    Amicus curiae briefs

    The following groups filed amicus curiae briefs in support of the petitioners, Jesus Hernandez et al.

    • Brief of the American Immigration Council et al.
    • Brief of Amnesty International USA et al.
    • Brief of the Border Action Network et al.
    • Brief of the Constitutional Accountability Center
    • Brief of former police chiefs
    • Brief of former U.S. Customs and Border Protection agents
    • Brief of the government of the United Mexican States
    • Brief of Mexican jurists, practitioners, and scholars
    • Brief of Restore the Fourth, Inc.
    • Brief of ten law professors
    • Brief of various constitutional law scholars
    • Brief of various law scholars
    • Brief of various legal historians

    The following amicus curiae brief was filed in support of neither party.

    • Brief of Professor Gregory C. Sisk

    The following amicus curiae briefs were filed in support of the respondent, Jesus Mesa:

    • Brief of the Criminal Justice Legal Foundation

    Certiorari filings

    Parties' filings

    • Jesus C. Hernandez et al., the petitioners, filed a petition for certiorari on July 23, 2015.
    • Jesus Mesa, Jr., the respondent, filed a brief in opposition to certiorari on September 25, 2015.
    • The United States of America et al., respondents in the case, filed a brief in opposition to certiorari on February 29, 2016.
    • Hernandez et al. filed a supplemental brief in support of granting certiorari on March 18, 2016.

    Amicus curiae filings

    The following groups filed amicus curiae briefs in support of granting certiorari.

    • Brief of Amnesty International USA et al.
    • Brief of Dean Erwin Chemerinsky of the University of California-Irvine School of Law
    • Brief of the government of the United Mexican States
    • Brief of the Paso del Norte Civil Rights Project et al.


    See also

    Footnotes

    1. ↑ 1.0 1.1 U.S. Court of Appeals for the Fifth Circuit, Jesus C. Hernadez et al. v. United States of America et al., April 24, 2015
    2. ↑ 2.0 2.1 2.2 2.3 2.4 2.5 U.S. Court of Appeals for the Fifth Circuit, "Hernandez v. United States," June 30, 2014
    3. ↑ 3.0 3.1 3.2 3.3 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    4. ↑ Supreme Court of the United States, Hernandez v. Mesa, October 11, 2016
    5. ↑ Supreme Court of the United States, Hernandez v. Mesa, argued February 21, 2017
    6. ↑ Supreme Court of the United States, Hernandez v. Mesa, argued February 21, 2017
    7. ↑ 7.0 7.1 7.2 7.3 Supreme Court of the United States, Hernandez v. Mesa, June 26, 2017
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