The Supreme Court ruled on Tuesday that the family of a Mexican teen who was shot and killed by a border patrol agent outside the country cannot pursue a claim of damages against the officer.
Mexico was not satisfied with the U.S. investigation and had requested Mesa to be extradited to face criminal charges in a Mexican court. The United States has denied that request.
Hernandez’s parents subsequently sued for damages at the district court claiming that Mesa had violated their son’s Fourth and Fifth Amendment rights. The district court dismissed the case, and the 5th U.S. Circuit Court of Appeals affirmed the decision. The family then appealed the decision to the Supreme Court.
This court then vacated the lower court’s decision and sent the case back to the lower courts for further consideration, in light of a related case about governmental immunity. The 5th Circuit affirmed the decision to dismiss the case, refusing to recognize a Bivens claim for the cross-border shooting.
“A cross-border shooting is by definition an international incident; it involves an event that occurs simultaneously in two countries and affects both countries’ interests. Such an incident may lead to a disagreement between those countries, as happened in this case,” he wrote.
He said the Executive Branch, who plays the lead role in foreign policy, had already taken the position that Mesa should not face charges in the United States nor be extradited to stand trial in Mexico. Meanwhile, Mexico has taken a different approach and has asked for Mesa’s extradition.
“Both the United States and Mexico have legitimate and important interests that may be affected by the way in which this matter is handled,” he continued. “It is not our task to arbitrate between them.”
“In the absence of judicial intervention, the United States and Mexico would attempt to reconcile their interests through diplomacy—and that has occurred,” he wrote.
The court also found that the extension of the Bivens doctrine could risk border security, where applying the principle could “interfere with the system of military discipline created by statute and regulation.”
Alito was joined by the court’s four conservative justices, Chief Justice John Roberts and Justices Brett Kavanaugh, Neil Gorsuch, and Clarence Thomas.
Meanwhile, Justice Ruth Bader Ginsburg wrote the dissent for three of her liberal colleagues—Justices Sonia Sotomayor, Elena Kagan, and Stephen Breyer—disagreeing with the majority’s reasoning.
Ginsburg wrote that the suit the family bought was “no different from one a federal court would entertain had the fatal shot hit Hernández before he reached the Mexican side of the border.”
“Neither U. S. foreign policy nor national security is in fact endangered by the litigation,” she wrote. “Moreover, concerns attending the application of our law to conduct occurring abroad are not involved, for plaintiffs seek the application of U.S. law to conduct occurring inside our borders.”
Justice Thomas, with Justice Gorsuch joining, also wrote a concurring opinion, saying that he thinks “the time has come to consider discarding the Bivens doctrine altogether.”
“Federal courts lack the authority to engage in the distinctly legislative task of creating causes of action for damages to enforce federal positive law,” Thomas wrote. “I see no reason for us to take a different approach if the right asserted to recover damages derives from the Constitution, rather than from a federal statute. Either way, we are exercising legislative power vested in Congress.”
