Justices Unsure of Constitutional ‘On-Off Switch’ at U.S. Border (1)

Nov. 12, 2019, 9:50 AM; Updated: Nov. 12, 2019, 6:51 PM

Some justices seemed unsure of whether the U.S.-Mexican border provides an “on-off switch” for holding federal officials accountable for constitutional violations, as they considered for the second time a lawsuit over the fatal shooting of a Mexican teen by a U.S. border patrol agent who fired across the border from El Paso, Texas, in 2010.

Several of the justices were concerned that allowing a suit here could have serious foreign policy consequences.

Following an investigation here, the United States found the border patrol agent had acted lawfully and refused to extradite the agent to Mexico to face criminal charges. But if the courts were to allow a suit here and a jury finds differently, wouldn’t that undermine the ability of the U.S. to “speak with one voice”? Chief Justice John Roberts wanted to know.

But University of Texas law professor Stephen Vladeck, who represents the parents of the Mexican teen, said the fact that Sergio Adrián Hernández Güereca was standing on the Mexican side of the border was mere happenstance. There shouldn’t be a “categorical on-off switch at the border,” Vladeck said.

During oral argument the attorney for the agent, El Paso attorney Randolph Ortega, admitted that a suit would be allowed if Hernández had been on the U.S. side of the border or even if Hernández had been a U.S. citizen.

Several justices found that hard to square with the argument that foreign policy considerations should nevertheless block a suit here.

You can wave your hands around and say “foreign relations” all day long, but what’s the actual problem? Justice Elena Kagan asked Ortega.

Disfavored Practices

At stake is whether individuals still can hold federal officials accountable for constitutional violations through lawsuits, or whether they must look elsewhere for recourse.

Hernández v. Mesa turns on interpretations of the court’s 1971 holding in Bivens v. Six Unknowned Named Agents allowing such suits against federal officials, as well as its decision two years ago in Ziglar v. Abbasi that drastically limited its application.

Hernández’s parents aren’t relenting in their claim of Fourth and Fifth Amendment violations and pursuit of damages despite the justices sending their case back to the U.S. Court of Appeals for the Fifth Circuit last year in light of the Ziglar decision.

The Fifth Circuit again ruled that they couldn’t sue the agent for violating their son’s constitutional rights, in part because Hernández was standing on the Mexican side of the border when he was shot.

An application beyond the U.S. border would be an expansion of Bivens, the lower court said. That’s a “disfavored” practice, according to the Supreme Court’s ruling in Ziglar.

Two Times

The Supreme Court decided in 1971 that Webster Bivens could sue federal drug agents for strip searching him in violation of his Fourth Amendment rights. Since then, the Supreme Court has only twice allowed a Bivens suit to go forward.

Kymberlee Stapleton of the victim’s rights advocacy group Criminal Justice Legal Foundation, which filed a friend-of-the-court brief urging the justices to disallow a Bivens action here, said “Congress, not the judiciary, is in the better position to create and define federal tort remedies.”

But being able to hold federal officials accountable for constitutional violations isn’t something new. It goes back to the founding, said the Institute for Justice’s Anya Bidwell, whose libertarian public interest firm filed an amicus brief going the other way.

The “Constitution is not an empty promise,” Bidwell said.

Separation of Powers

There is no federal statute allowing suits against federal officials who violate constitutional rights, and over the past 30 years the Supreme Court has dramatically limited the scope of when Bivens can apply, Bidwell said.

Then came Ziglar in 2017. The case was brought by Muslim non-citizens who were detained in the aftermath of the Sept. 11 attacks. The Supreme Court said they couldn’t sue high level federal officials over their confinement.

Such an expansion of Bivens into a new context “is now considered a ‘disfavored’ judicial activity,” Justice Anthony Kennedy wrote for a 4-2 court in 2017. Justices Sonia Sotomayor, Elena Kagan, and Neil Gorsuch didn’t participate in the decision.

In Ziglar, it was clear that the court didn’t want to overrule Bivens outright, but didn’t want it extended into new contexts, Washington attorney Larry Joseph said. Joseph filed a friend-of-the-court brief on behalf of APA Watch, a non-profit seeking to enforce limits on government authority, urging the justices to refuse a Bivens action here.

The justices made clear in Ziglar that national security concerns bound up in the country’s response to 9/11 counseled against extending Bivens to the claims in Ziglar.

Specifically, the court highlighted separation of powers concerns of allowing the judiciary to create a right of action where Congress hasn’t, Stapleton said.

Those same concerns are present in Hernandez, she said.

But University of St. Thomas professor Gregory Sisk says despite the cross-border element of the current case, there really aren’t the same kind of national security concerns that were present in Ziglar.

Moreover, the case involves the “ultimate abuse of federal power"—taking a life, said Sisk, who filed an amicus brief urging the court to allow the case to go forward.

If the court says there is no right to sue the federal official here then that “really does mean there is nothing left of Bivens, no matter how egregious the harm,” Sisk said.

The case is Hernandez v. Mesa, U.S., No. 17-1678, argued 11/12/19.

(Updates to include discussion of oral arguments)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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