On November 12, 2019, the Supreme Court will once again take up Hernandez v. Mesa on a writ from the U.S. Fifth Court of Appeals. The case arises from a 2010 confrontation on the U.S.-Mexican border in which U.S. Border Patrol agent Jesus Mesa shot and killed Sergio Hernandez, a teenage Mexican national.
Although the FBI apparently cleared Mesa of wrongdoing and Hernandez was not standing on American soil at the time he was shot, the Hernandez family filed suit against Mesa and the federal government based on the Supreme Court's decision in Bivens v. Six Unknown Named Agents, which held that a federal agent can be found liable in damages under the Fourth Amendment for committing an unconstitutional search and seizure. After the Hernandez family lost their lawsuit in federal district court, they appealed. The Fifth Circuit ruled against them as well, concluding that Mesa had qualified immunity and the Hernandez family could not rely on Bivens to bring the suit. The Supreme Court vacated and remanded, instructing the Fifth Circuit to reevaluate its ruling in light of Zihlar v. Abbasi, which requires courts to evaluate certain factors before extending Bivens into new areas.
The central issue now before the Supreme Court is whether the Hernandez family can recover damages in a Bivens action for the killing of their son in violation of the Fourth and Fifth Amendments when there is no other available remedy under federal law. But Bivens actions have never been applied outside the borders of the United States, and the Fourth Amendment generally does not protect foreign nationals in extraterritorial settings. Should the Court now expand Bivens' applicability in the context of the Fourth Amendment, its ruling could impact a host of overseas law enforcement, military and intelligence activities conducted by the United States in which foreign nationals are harmed at the hands of American government actors. A ruling for Hernandez therefore could have far-reaching, even unintended consequences; and even if the Court were to try to narrowly tailor its decision to the facts of the case, restricting its holding, for example, to a narrowly defined zone along the Mexican border, the Genie would already have one hand out of the bottle.