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Episode Notes

On February 25, 2020, in a 5-4 ruling in the case of Hernandez v. Mesa, the Supreme Court ruled that the parents of Sergio Adrián Hernández Güereca, a 15-year-old Mexican national who was fatally shot by Border Patrol Agent Jesus Mesa, Jr., cannot sue the U.S. Customs Border Patrol agent for damages under the U.S. Constitution and that the 1971 Bivens v. Six Unknown Named Agents ruling, does not extend to the family’s cross-border shooting claims.

On today’s Lawyer 2 Lawyer, host Craig Williams is joined by professor James Pfander, from Northwestern Pritzker School of Law to discuss the recent SCOTUS decision in Hernandez v. Mesa. Craig and James take a look at this case and the path to the Supreme Court, the 5-4 ruling, and the impact this decision will have on future cases regarding the border.

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The SCOTUS Ruling in Hernandez v. Mesa





James Pfander: The Supreme Court had no occasion to reach that issue in the Hernandez case because it concluded as a matter of threshold decision making that there was no right to sue under the Bivens doctrine. Had it concluded that the Bivens doctrine was available, it would have faced a question about the degree to which the constitutional rights at issue here were properly available to the young man at the time the shooting took place.




Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer, with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.




  1. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I am Craig Williams coming to you from Southern California.


I write a legal blog named ‘May It Please the Court’ and have a book out titled ‘The Sled’.


Well, before we introduce today’s topic, we would like to take this time to thank our sponsor Blue J Legal.


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On February 25th, in a 5-4 ruling in the Supreme Court in the case of Hernandez v. Mesa, the parents of Sergio Adrián Hernández Güereca, a 15-year-old Mexican national who was fatally shot by Border Patrol agent Jesus Mesa, Jr. learned that they cannot sue the U.S. Customs and Border Patrol agent for damages under the Constitution and the 1971’s Bivens v. Six Unknown Named Agents ruling.


This case does not extend to the claims based on a cross-border shooting so we’re here to talk about the background of that case according to Oyez. Hernandez was playing with friends between El Paso, Texas and Ciudad Juárez, Mexico. They arrived on scene and detained one of Hernandez’s friends on U.S. soil, Hernandez ran into Mexican territory and stood by a pillar.


From the US side of the border, Mesa fired at least two shots at Hernandez, one of which struck in the face and killed him. Hernandez’s parents filed a lawsuit against Mesa and others alleging violation of their son’s Fourth and Fifth Amendment rights.


So can U.S. Border Patrol agent be sued for fatally shooting a Mexican teenager standing on the other side of the United States border in Mexico?


Today on Lawyer 2 Lawyer, we’re going to be discussing this recent SCOTUS decision in Hernandez v. Mesa. We’ll take a look at this case in the path to the Supreme Court, the 5-4 ruling, and the impact the decision will have on future cases regarding the border.


And our guest to help us do that today is Prof. James Pfander from the Northwestern Pritzker School of Law. Jim has focused his teaching and research on the role of the federal judiciary under Article III of the Constitution. His latest book ‘Constitutional Torts and the War on Terror’ from Oxford University Press documents and evaluates the failure of the federal courts to address the merits of claims of individuals who were subjected to extraordinary rendition, military detention and torture during the Bush administration’s war on terror.


In Hernandez v. Mesa, Prof. Pfander co-wrote an amicus brief on the Hernandez’s family side. Welcome to the show, Jim.


James Pfander: Glad to be here. Thank you.


  1. Craig Williams: Can you give us a bit of background about the cases and how we got to the place where we are now?


James Pfander: I can. The doctrine that we’re talking about today, the so-called Bivens doctrine begins as you observed in 1971 with the court’s recognition that an individual could bring a lawsuit against federal officers for violation of his Fourth Amendment rights.


That had always been available as a matter of statutory law to individuals bringing suits against State officials, that’s a suit that we refer to as a Section 1983 claim after the Statute that authorizes that suit to go forward. But although Congress adopted the 1983 Statute as part of reconstruction to deal with the threat of the Klan in the South, it has never adopted a similar statute authorizing suits for money damages that result from a federal officer’s violation of an individual’s constitutional right.


Those claims were always based on State Common Law back in the 19th Century and as State Common Law became a less effective mechanism for the enforcement of those sorts of rights, the Supreme Court decided to recognize in addition a federal right to sue to enforce one’s constitutional rights and that was the Bivens doctrine announced in 1971.


Since the Bivens decision came down, the Supreme Court has oscillated recognizing on some occasions that individuals do have a right to sue for damages if their rights are violated.




But increasingly, in recent years, declining to recognize a right to sue on a Bivens’ theory, so Bivens has been in retreat for the last say 30 years or so, and the most recent collection of decisions by the Supreme Court, the decision in Ziglar v. Abbasi, a couple of years ago in 2017 and this most recent decision Hernandez v. Mesa signal a court that has grown increasingly hostile to the Bivens form of remediation, and you’re just seeing an example of that in the most recent cross-border shooting case.


  1. Craig Williams: What role does sovereign immunity play in this situation?


James Pfander: Sovereign immunity doesn’t play a direct role, but it plays a role in the background, so as your listeners doubtless know both state and federal governments have a kind of presumptive claim to sovereign immunity from suit and that means that for individuals to enforce their rights, they will typically either rely on a statutory framework that the Congress or the State Legislature has put in place, or they will bring in a lawsuit not against the government itself which would trigger sovereign immunity, but instead, they’ll bring the lawsuit against the officer and both for purposes of seeking injunctive relief, seeking habeas corpus review of custody and for purposes of seeking damages relief for violations of constitutional rights. The officer suit is the mechanism that people most frequently rely on.


  1. Craig Williams: Does Hernandez have any type of a state court remedy available to the family?


James Pfander: He doesn’t, and that’s one of the important changes that has taken place since the Bivens decision came down. It’s a change in the underlying law that I think the Supreme Court has not yet grappled with effectively. So at the time the Bivens case was decided, the state courts recognized common law tort rights of action on behalf of individuals whose rights were violated by federal officials.


So throughout the 19th Century and into the 20th Century, individuals who suffered violations at the hands of federal officials were entitled to sue those officials in their personal capacity to secure an award of damages for violation of their common law tort rights to freedom from invasions of their rights to privacy or their rights to property, their rights to freedom from personal injury and the like.


That body of law was in place in 1971, but Congress has since set that body of law aside in a Statute that was adopted in 1988. The so-called Westfall Act, and in Westfall, Congress essentially said that we’re not going to allow you to sue federal officers any longer on common law or state law theories of liability, those claims have all been eliminated and instead you can only sue federal officers for violations of the Constitution or for violations of federal statutes.


So now the backdrop, the common law right to sue the official is no longer available to claimants in the position of the Hernandez family, and so there is no as a practical matter common law right of action available against this officer. In fact, the court went through a series of possible ways that the family might secure redress and concluded I think quite accurately that none were really available to this family. So the only remedy that was available was denied by the Supreme Court.


  1. Craig Williams: What claim does Hernandez have to constitutional protection under any of the amendments bill writes to the United States Constitution? Where does as a Mexican national how does he lay claim to those rights?


James Pfander: Well, that is a fair question and the court didn’t reach the issue of the extent to which the constitutional rights at issue in this case rights to freedom from unlawful seizures under the Fourth Amendment, rights to freedom from violations of substantive due process under the Fifth Amendment.


The court didn’t decide the question of whether those rights were available to a non-U.S. citizen injured on non-U.S. soil, and that is a significant question in the case, the extent to which the Constitution of the United States operates as an extraterritorial limit on what federal officers can and cannot do when they act outside the boundaries of the U.S.


The Supreme Court had no occasion to reach that issue in the Hernandez case because it concluded as a matter of threshold decision-making that there was no right to sue under the Bivens doctrine. Had it concluded that the Bivens doctrine was available, it would have faced a question about the degree to which the constitutional rights at issue here were properly available to the young man at the time the shooting took place. I will say that the Supreme Court has been somewhat open to the recognition that the Constitution travels beyond the borders of the United States.




As you know in litigation that arose from the Guantanamo Bay detention, the Supreme Court held that the right to freedom from the suspension of access to the writ of habeas corpus, a constitutional right specified in Article I of the document was available to aliens detained outside the United States at Guantanamo Bay.


One of the reasons the government chose Guantanamo Bay as the place for detention was to make the argument that no constitutional restrictions would apply to the treatment that the government extended to those individuals at Guantanamo, but the Supreme Court rejected that argument and concluded that the Constitution does have a role to play at least when the government essentially exercises a degree of control over the territory in question and Justice Breyer although he was in dissent developed a line of argument about the nature of the control that the United States government exercised over the border area and it’s not a sharp border if you see a photography or videography of the space in question, it is a culvert, a kind of sloping down to a low point and then sloping back up to a higher point on the Mexican side of the border, it used to be the Rio Grande but the Rio Grande has slowed to a trickle so there’s more culvert than there is river there and the U.S. government has an exercise is a good deal control over all of that space not just the space that is within the formal boundaries of the United States.


  1. Craig Williams: How does the Supreme Court get around that argument in Hernandez, I mean, the situation is obviously they like the Customs and Border Patrol’s exercise some level of control over. It undertook an action that injured of foreign citizens, but in the same sense that Guantanamo is exercising control over an area and foreign citizens, how do they distinguish them?


James Pfander: Well, they didn’t bother to try to distinguish. I think one of the things that was in the back of the court’s mind was a concern about drone strikes, which are I think a very different kind of problem. The court was concerned I think, although it didn’t address this issue with the possibility that U.S. officials acting within the sovereign boundaries of the United States or the territorial boundaries of the United States might as with the case of drone strikes, inflict injury on people located outside the United States and was reluctant to embrace a doctrine that would invite that sort of litigation.


But on the particular question of how the court distinguished the cross-border shooting case from a case like say Guantanamo, I’ll just say again that the court didn’t feel that it had to address that question because it took the position that whatever the constitutional rights of the individuals may have been there was no right to sue to enforce those rights and so that allowed the court to avoid any inquiry into what the nature of the rights in question might happen to be.


It’s a strategy quite similar to the attitude or the approach that the courts took to torture claims as those came to the federal courts in the Wake of the Bush Administration war on terror. In response to those claims, the federal courts consistently figured out ways not to address the merits of the torture claim but to avoid the adjudication of the case on other grounds, and that’s what the court has done here by denying a right to sue, it has refused to allow the case to proceed and so there will be no engagement with the merits of this question of how far the Constitution extends.


  1. Craig Williams: In California, we’ve codified some of the common law and they’re called Maxims of Jurisprudence and one of them is that for every wrong there is a remedy. It’s not only a common law right but I think in California it’s a statutory right. How did the Supreme Court grapple with the concept that they could just simply ignore the fact there was a wrong admittedly, but there’s no remedy?


James Pfander: That is a question in the Bivens context that this court has not yet confronted in my judgment. I think that Maxim, it obviously shows up in the case of Marbury vs. Madison and it’s a constant theme in the jurisprudence of the 19th Century, the notion that if a right has been invaded there should be some sort of remedy available to the victim of that invasion. I think that’s quite a powerful case for the proposition that some sort of remedy should have been made available to the Hernandez family.


But the Supreme Court hasn’t faced that question, it has thought about the problem of whether to recognize the right to sue as a different kind of problem. It thinks about the problem in terms of whether to recognize what it has come to refer to as an implied right of action and the court has turned against the recognition of implied rights of action in the last 20 or 30 years under the influence of such jurisprudence as Justice Scalia who’s emphasized a more textualist approach to the interpretation of statutes.




So the Supreme Court has been reluctant to recognize any right to sue that is not specified in a Statute adopted by Congress. So when the court confronts the problem of whether to recognize a right to sue under Bivens, it doesn’t ask itself the fundamental question does the due process clause or the common law principle of remediation that you cited, it doesn’t ask itself the question whether a remedy must be available under those principles, instead it asks itself a different question, should we recognize a judge-made right to sue here in circumstances where we think the recognition of that right to sue may impede the federal government’s ability to achieve its national security and immigration goals along the border. It might have some impact on the way the international kerfuffle that arose quite understandably from this shooting would be resolved between the two nations that were concerned, the United States of Mexico.


So I think it’s blinded itself to the question that you pose and one of the strategies and goals I think of advocates and jurists in this area will be to try to confront the court I think a little bit more directly with the notion that its jurisprudence here, has departed from that common law backdrop the assumption that rights require remedies.


You can see it reflected a little bit in Justice Kennedy’s opinion in Ziglar v. Abbasi and again I think in our Hernandez’s opinion, the court is operating on the assumption that other forms of remedies might be available for constitutional claims of this character. You might have a claim under the APA, the Administrative Procedure Act, or perhaps the claim for injunctive or declaratory relief, or perhaps a claim for habeas relief and so some of these issues might be addressed in those contexts, but for this family, the Hernandez family, none of those alternative forms of remediation is worth invoking. There is no possible way that those alternative remedies can be successfully invoked. So for this family Bivens is the only remedy available and the court’s reluctance in refusal to recognize a remedy raises just the sorts of issues that you’ve identified.


  1. Craig Williams: Well, thank you. Well, Jim, before we move on to our next segment, we’re going to take a quick break and hear a message from our sponsor. We’ll be right back.




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  1. Craig Williams: And welcome back to Lawyer 2 Lawyer. I’m Craig Williams and with us today is Prof. Jim Pfander from Northwestern Pritzker School of Law. We have been discussing the recent SCOTUS decision in Hernandez v. Mesa, where Customs and Border Patrol agents shot a Mexican teenager on the other side of the border.


Jim, going through law school, it always seems when you review Supreme Court cases that facts play a big part. Are there any particular facts that the Supreme Court looked at that they hung their hat on to justify the reach of the opinion here?


James Pfander: I think the court was especially influenced by what it refers to in its Bivens jurisprudence as the existence of a new context, and so what the court has come to say about the availability of a right to sue, is that, we will allow individuals to sue but only if they bring a lawsuit that falls within an established Bivens context.


The court has identified three such established Bivens contexts. One is for suits under the Fourth Amendment search and seizure suits, that was the original lawsuit brought by Webster Bivens in New York City against six unknown named agents of the Federal Bureau of Narcotics. Actually I guess there were only five that were actually served in the case, but the case name still refers to the six agents. So the Fourth Amendment context, a second Bivens case recognized the right of an individual to bring a lawsuit against a member of Congress or sex-based discrimination and violation of the Fifth Amendment, so an equal protection claim under the Fifth Amendment has been recognized.


And then finally, the court has recognized a Cruel and Unusual Punishment claim under the Eighth Amendment so the individuals were subjected to Cruel and Unusual Punishment and secure Bivens-based damages for the violation of their constitutional rights.




In recent years the court has been narrowly defining those established contexts and treating other Bivens theories as presenting a new context in which the court must recognize a brand-new Bivens right to sue and in assessing whether such a new right to sue is available, the court gives a great deal of attention to what it calls special factors counseling hesitation.


So the two critical moves in the court’s opinion are these. First, to say that this case arises in a new context, because it’s not either the Fourth Amendment context in the Bivens case or the Fifth Amendment context, the Equal Protection claim or the Cruel and Unusual Punishment claim, it’s different because this is a border case, this implicates immigration, this perhaps implicates issues of Foreign Relations because of the involvement of the Mexican government. And that’s different from a situation for example a Fourth Amendment claim that arose from a drug-related search of an apartment in New York City, the Bivens case, and so that allows the court to distinguish the Hernandez situation from the Bivens situation and to argue that this is therefore a new context not controlled by the previous determination in Bivens, and since it’s new, the court must apply its special factors counseling hesitation and that requires it to consider national security implications. The possibility that recognition of a right to sue might interfere with the federal government’s delicate foreign relations concerns and so forth.


So with an increasingly narrow conception of what are established contexts, virtually every context will be new and virtually every new context will be one in which no right to sue will be recognized because the special factors analysis will essentially foreclose any such recognition.


I have to say that the court’s approach here is diametrically opposed to the approach that the Federal Courts and the Supreme Court took to the very same set of problems in the 19th Century. So in the 19th Century when the individuals were bringing lawsuits for example against naval captains for wrongful capture of a vessel on the high seas, they were bringing suits against U.S. revenue officers for affecting a seizure of a vessel on the high seas outside U.S. territorial waters.


There was a case brought against an army official who was actually prosecuting a shooting war in Mexico, and in the course of prosecuting that battle, the officer took property from an individual who was accompanying the army on the battle — on the battlefield and that individual, all of those individuals were allowed to pursue their claims against the federal officials successfully in Federal Court.


Even though they implicated questions of military necessity, foreign relations and the like, and the Supreme Court’s attitude was very interesting in the 19th Century. The view it took was this, we can’t assess those claims of national security or emergent necessity or military necessity. Only executive branch officials can do that.


Our job is just to decide upon the law, does the law afford a remedy where the rights of the individual violated. If they were our job is clear, we just have to adjudicate the case and award suitable reparations, it’s for the executive branch to decide how to act in a crisis and if an individual is held personally responsible or liable as all three of those individuals were in the 19th Century then it’s the responsibility of Congress to indemnify them and make them whole.


So the responsibility of the political branches is to take appropriate action, that’s the executive, and the legislative branch to assure that the officer who takes that action is protected through an award of indemnity. So ultimately the law should fall on the federal government, as it did under this system, and reparation should be provided or redress should be provided to the individual who suffers the injury as again it was under the 19th Century system.


  1. Craig Williams: What changed?


James Pfander: Yeah. Well, it’s very — yeah that’s a great question, what has changed? I think it’s a combination of things. There has been a move away from reliance on common law forms of remediation, so the rise of statutes in the 20th Century is part of the story, but I think the Supreme Court has simply lost touch with the 19th Century separation of powers predicate for government accountability litigation. It’s been so concerned with the irresponsible expansion of rights to sue under the Bivens doctrine, and that’s what it’s really focused on that it has lost sight of a kind of fundamental underlying common law predicate or framework for government accountability that just operated on an entirely different set of assumptions.




One of the assumptions interestingly further to your point about federal sovereign immunity, the idea was that you sue the officer because the federal government is immune, but ultimately the federal government is not immune. Ultimately the federal government will pick up the tab for the injuries inflicted by passing a Statute or providing authorization for a grant of indemnity to the officer. So at the end of the day under that system with indemnity you get the cost of the wrongdoing borne by the right entity, the federal government in our story, not by the officers trying to do the work of the government and the loss doesn’t get shifted to the individual victim either.


In addition you get articulations of law from the courts. The courts take the position that our job is to say whether the fellow’s rights were violated, we’re not supposed to decide whether it implicates national security or military necessity, that’s for other people to do. We just do law in the judicial branch. I think it’s really ironic that the court today is saying that it’s trying to stay out of national security and military necessity when in fact it’s allowing those considerations to inform its analysis of whether there’s a right to sue.


  1. Craig Williams: I have a quintessential law school question for you, would it have mattered factually if Hernandez was on United States soil?


James Pfander: The justices involved in the argument assumed that it would, that is to say there was a good deal of attention paid to the possibility that the shooting might have taken place while Hernandez was on the U.S. side of the border and wouldn’t that fall within an established Bivens context that is to say the Fourth Amendment search and seizure context of the original Bivens action.


And then there was some discussion of the possibility that that conception of the border might nonetheless occasion the recognition that this was a new context, that is to say a drug deal and a search incident to that in a New York City apartment is different from a seizure through the use of force along the border with Mexico.


So even had the young man been on the U.S. side of the border I think the argument for the application of an established Bivens context would be stronger. The argument that the Constitution applies once the individual is within the territorial boundaries of the United States is much stronger. And there’s a possibility that one of the justices might have slipped, might have peeled off to join the dissenters to recognize the existence of a right to sue there, but there’s still a possibility.


  1. Craig Williams: I have just one last question before we wrap up and get your final thoughts because we’re nearing the end of our program, but how would it have mattered if the Mesa had been criminally charged? Would Hernandez have a right to a remedy under the victim restitution fund?


James Pfander: It’s possible that he could have received some compensation that way and it’s also possible that if Mesa had been extradited to Mexico and Mexico requested his extradition, that Mexico could have adjudicated a money claim against Mesa along with any criminal claim or prosecution that it pursued against him in the courts of Mexico.


So, it is possible that there could have been some kind of reparations awarded in connection with criminal process. But even if extradition had been granted in the case and a judgment for money had been issued by a Mexican court it’s not obvious to me that Mesa’s assets would be available to pay that judgment, because in order to enforce a Mexican judgment, the family’s lawyers would have to bring that judgment over to the United States and try to enforce it against Mesa’s assets here. And there’s every reason to think that the Westfall Act Immunity could block the attempt to enforce that judgment against Mesa’s assets in the United States. So a tough situation all around, yeah, exactly right.


  1. Craig Williams: Well, Jim, it looks like we’ve reached the end of our program, so I’d like to invite you to give your final thoughts as we wrap up.


James Pfander: I guess my final thought is that the court has just as I may have indicated, misunderstood the context in which it is deciding these cases. It has failed I think to really grapple with the problem of the absence of any remedy for a person in this situation, and for a court, especially the conservative majority of the court that professes a kind of allegiance to the common law background or framework for understanding what it means to offer due process of law. It’s a kind of glaring omission on the part of the Supreme Court majority.


And so my hope is that over the course of the next years and months assuming that Congress doesn’t pass a Statute that authorizes such suits to go forward that by confronting the Court with a clearer picture of the perspective of the 19th Century, we might be able to persuade a few of the justices who profess a kind of allegiance to that model of government accountability to rethink their position.




  1. Craig Williams: Great. Well, thank you very much and as a wrap up I’d like to thank Jim Pfender, Professor from Northwestern Pritzker School of Law for joining us today.


If you liked what you heard please rate us on Apple Podcasts, Google Podcasts or your favorite podcasting app. You can also visit us at where you can sign up for our newsletter and reach out to Professor Pfender if you’d like.


I’m Craig Williams, thanks for listening, join us next time for another great legal topic, when you want legal think Lawyer 2 Lawyer.




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Episode Details
Published: March 6, 2020
Podcast: Lawyer 2 Lawyer
Category: Legal News
Lawyer 2 Lawyer
Lawyer 2 Lawyer

Lawyer 2 Lawyer is a legal affairs podcast covering contemporary and relevant issues in the news with a legal perspective.

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