Justices Say Fifth Circuit Must Decide Cross-Border Shooting Case

(CN) – A divided Supreme Court on Monday said the Fifth Circuit must ultimately decide whether the family of a Mexican teen shot dead by a U.S. border agent can sue the agent for damages.

The court’s unsigned opinion vacates a previous ruling by an en banc Fifth Circuit and sends the case back to it for further proceedings.

The case stems from a shooting that occurred on June 7, 2010. Sergio Adrian Hernandez Guereca, a 15-year-old Mexican national, was with a group of friends in the cement culvert that separate El Paso, Texas, from Ciudad Juarez, Mexico.

As recounted in the majority opinion, Hernandez and his friends were playing a game in which they ran up the embankment on the United States side, touched the fence, and then ran back down.

Border Patrol Agent Jesus Mesa, Jr., arrived on the scene by bicycle and detained one of Hernandez’s friends on the U.S. side of the embankment. Hernandez ran across the culvert and stood by a pillar on the Mexican side. Mesa fired two shots across the border, one of which struck Hernandez in the face, killing him.

The Justice Department investigated the incident and declined to bring federal civil rights charges against Mesa, finding there was insufficient evidence that Mesa “acted willfully and with the deliberate and specific intent to do something the law forbids.”

It also held that because Hernandez was not on U.S. soil when he was shot, the department had no jurisdiction to bring charges against the agent.

Hernandez’s parents sued Mesa for damages, claiming that he violated their son’s rights under the Fourth and Fifth Amendments. They also said at the time of his death, their son was unarmed and in no way posed a threat to the officer.

A federal judge in the Western District of Texas granted Mesa’s motion to dismiss. A three-judge panel of the Fifth Circuit later affirmed that ruling in part and reversed it in part.

It held Hernandez lacked any Fourth Amendment rights under the circumstances, but that the shooting violated his Fifth Amendment rights. On rehearing en banc, the Fifth Circuit unanimously affirmed the district court’s dismissal of the family’s claims against the officer.

The en banc court held that the family failed to state a claim for a violation of the Fourth Amendment because Hernanadez was “a Mexican citizen who had no ‘significant voluntary connection’ to the United States” and “was on Mexican soil at the time he was shot.”

In regard to the family’s Fifth Amendment claim, the en banc court said it was “somewhat divided on the question of whether Agent Mesa’s conduct violated the Fifth Amendment,” but was unanimous in concluding that Mesa was entitled to qualified immunity.

In their petition for a writ of certiorari, the family asked the Supreme Court to determine whether they could assert claims for damages under Bivens v. Six Unknown Fed. Narcotics Agents, in which the high court recognized for the first time an implied right of action for damages against federal officers alleged to have violated a citizen’s constitutional rights.

They also asked the justices to determine whether the shooting violated their son’s Fourth Amendment rights, and whether Mesa was entitled to qualified immunity on the claim that the shooting violated Hernandez’s Fifth Amendment rights.

In sending the case back to the Fifth Circuit, the majority noted that a Bivens remedy is not available when there are “special factors counselling hesitation in the absence of affirmative action by Congress,” and that it recently clarified what constitutes a “special factor counselling hesitation” in the case Ziglar v. Abbasi.

“The Court of Appeals here, of course, has not had the opportunity to consider how the reasoning and analysis in Abbasi may bear on this case. And the parties have not had the opportunity to brief and argue its significance. In these circumstances, it is appropriate for the Court of Appeals, rather than this Court, to address the Bivens question in the first instance,” the opinion says.

“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 Hernandez lacked any Fourth Amendment rights under the circumstances,” the opinion continues. “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,” the majority of justices say.

“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 Hernandez 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,” the opinion says.

In a dissent, Justice Clarence Thomas said the facts of the case differ considerably from those at issue in Bivens and its progeny, “most notably … this case involves cross-border conduct , and those case did not.” Thomas says he would decline to extend Bivens under the circumstances and would affirm the en banc Fifth Circuit decision on that basis.

In a separate dissent, which Justice Ruth Bader Ginsburg joined Justice Stephen Breyer says that when Mesa shot Hernandez from across the culvert, he did not know whether Hernandez was a U.S. citizen or a Mexican citizen. Further, he says, the agent has never asserted he knew on which side of the boundary his bullet would fall.

Breyer goes on to say that while the culvert is thought of as being the boundary line between the two countries, technically, because there are fences on either side of it, it may actually be thought of as no more than a “border-related area” and that the boundary is in essence “an invisible line of which none of them is aware.”

In light of these considerations and others, Breyer says there is “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,” Breyer says.

“Finally, I note that neither court below reached the question whether Bivens applies to this case, likely because Mesa did not move to dismiss on that basis. I would decide the Fourth Amendment question before us and remand the case for consideration of the Bivens and qualified immunity questions,” he adds.

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