Courthouse Steps Oral Argument Teleforum: Hernandez v. Mesa

Criminal Law & Procedure Practice Group Teleforum

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The case of Hernandez v. Mesa 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.

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. Peter Thomson joined us to discuss the oral argument and offered predictions on the outcome of the case as well as its greater implications.

Featuring: 

Peter M. Thomson, Special Counsel, Stone Pigman Walther Wittmann LLC

Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Criminal Law and Procedure Practice Group, was recorded on Thursday, December 19, 2019 during a live teleforum conference call held exclusively for Federalist Society members.     

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call.  This afternoon's topic is a Courthouse Steps Oral Argument teleforum on Hernandez v. Mesa.   My name is Micah Walled, and I am the Assistant Director of Practice Groups at The Federalist Society. 

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today, we are fortunate to have with us Peter Thompson, who is a partner at Stone Pigman Walther Wittmann LLC.  After our speaker gives his opening remarks, we will then go to audience Q&A.  Thank you for sharing with us today.  The floor is yours.

 

Peter M. Thompson:  Thank you.  My appreciation to The Federalist Society for allowing me to make this presentation and discuss this case. The issue before the Supreme Court in this case is whether it should recognize a civil damages claim under Bivens, which to refresh your memory says, effectively, that federal agents can be held liable for search and seizure violations under the Fourth Amendment. 

 

      Back to about this case, but where the plaintiff is shot and killed, on the other side of the U.S./Mexican border by alleged rogue federal law enforcement agent, who was standing on the U.S. side allegedly violating the plaintiff's Fourth and Fifth Amendment rights, for which, clearly in this case, there's no alternative legal remedy. 

 

      So this case is unique in that it arises from a cross-border shooting committed by a border patrol officer while the officer was patrolling on a bicycle in a very large culvert marking the border between Texas and Mexico.  Now, the culvert, the type of huge culvert that you might have seen in some Hollywood movies—not this specific culvert, but a huge culvert where you can actually drive a car, even on one side—this culvert used to have the Rio Grande River flowing through it.  It's very large.  There are embankments up on each side of the culvert where, in this case, some teenagers apparently were playing, or allegedly playing by running up and down the culvert. 

     

      Now the agent, the border patrol agent in this case, who rolled up on this bicycle, Mr. Mesa, he was detaining someone, or had detained someone, jumped off the bike and detained somebody in this huge culvert on the U.S. side.  As he was doing that, he apparently was attacked by individuals throwing rocks from the Mexican side of the border. 

 

      Now, before going on, I think it's important just to paint a little bit better picture, here, because Justice Breyer, at oral argument, specifically talked about this culvert and the special nature of this border area.  At the top of the U.S. side is a fence.  But the actual border itself, which runs down, my understanding is, the middle of this culvert, there's actually no fence there.  So in a sense, it's an imaginary line.  But the fence is higher up the culvert, marking the U.S. side.  And above the culvert is a bridge.  And hundreds, as Justice Breyer said, hundreds, if not thousands of people, maybe walk daily back and forth across the bridge, both Americans and Mexicans, and I'm sure, other nationals walking back and forth across the bridge. 

 

      But back to the shooting.  According to the record, the border patrol -- and I believe it was the FBI investigated the case, and they concluded that this agent, Agent Mesa, had acted lawfully.  So, before going further and talking about, or discussing argument, the oral argument, I think we need to put in perspective a bit, the case history, so we can frame the issues a little bit better for our argument discussion. 

 

      So after this happened, the family of Sergio Hernandez filed a lawsuit in U.S. District Court in Texas.  The district court dismissed the suit, finding no Bivens action.  The Fifth Circuit, after rehearing en banc, they ultimately reaffirmed the district court's dismissal of the plaintiff's claims and held that the plaintiff's failed to state a claim for violation of the Fourth Amendment.  And with respect to the Fifth Amendment due process claim, that the border agent is qualified, or is entitled to qualified immunity.  So all in all, the Fifth Circuit's ultimate decision was a bad day for the Hernandez family.

 

      So back in 2016, the Supreme Court granted writs.  The Supreme Court actually reversed, back then, we'll call this Hernandez One, reversed the Fifth Circuit's holding on qualified immunity.  And the Supreme Court reasoned, at the time, that the border patrol agent did not know exactly who he was shooting.  He did not know that Sergio Hernandez -- and no one disputes this, neither side disputes this.  He did not know that Sergio was a Mexican national or did not know what connections this person that got shot had to the United States before the agent pulled the trigger.  So the Supreme Court reserved the judgement, however on the Fourth Amendment issue.  And they also reserved the judgement on the Bivens issue.  And they sent the case back to the Fifth Circuit to review and reevaluate its decision under the Supreme Court's, then at that point, very recent decision in Ziglar v. Abbasi, which the Court decided in the interim.  After the Fifth Circuit had ruled and after they had accepted writs. 

 

      Now, the Abbasi decision, which was rendered in 2017, is absolutely central to the Supreme Court's current inquiry.  It is the case that -- the reason, or part of the reason, a substantial part of the reason they sent it back to the Fifth Circuit to reevaluate under Abbasi.  And Abbasi is a case that arose out of the mass detentions of foreign nationals by the U.S. following the September 11 terrorist attacks.  Following the release of some of these detainees, some of them sued the U.S. government, alleging that they had been confined, unconstitutionally, under harsh conditions, solely, I believe, because of their race or religion.  Most importantly, they sought damages for these alleged constitutional violations under the implied cause of action theory, or cause of action adopted in Bivens v. Six Unknown federal narcotics agents – the Bivens decision decided by the Supreme Court, nearly 50 years ago.

 

      Just to jump back to Bivens for a moment before proceeding more to talk about Abbasi, the central issue in Bivens was whether, the Fourth Amendment offered a private right of action against agents who had arrested Bivens in his home without a warrant during a search, arrested him without probable cause.  Or whether Bivens only remedy, at that time, was a state law injury claim.  The Supreme Court went with the first approach.  And the Court created an inferred right of action.  To file a civil lawsuit against federal officials who violate the Fourth Amendment for committing an unreasonable search and seizure.  No statute, at the time allowed it, so the Court said, at the time, that they are inferring this right from the Fourth Amendment.  And the Court said that the right exists because a Constitutional protection would not be meaningful if there was no way to seek a remedy for violation of that Fourth Amendment, or those Fourth Amendment rights.

     

      So let's jump back to Abbasi.  Justice Kennedy delivered the opinion in Abbasi.  And in doing so, he first noted, very importantly, that Bivens has limited reach.  Justice Kennedy noted that the 1983 statute, 42 U.S.C. § 1983 enacted long before Bivens.  But he noted that § 1983, while it provided a damages remedy against state officers for constitutional violations, it provides no corresponding remedy for constitutional violations by federal officers.  So only state officers.  So against that backdrop, Kennedy explained in Abbasi that the Court recognized in Bivens, an implied damages action to compensate people injured by federal agents who violate the Fourth Amendment.  But Kennedy also stressed that since Bivens, which is almost 50 years old, since that time, the Supreme Court has adopted a very cautious approach to implying causes of action for constitutional violations of federal officers or by federal officers. 

 

      So Abbasi says that, if a statute does not clearly evidence congressional intent to create a new private right of action, then no such action should be created judicially.  And similar caution needs to be exercised with respect to damages, actions implied, to enforce the Constitution, itself.  So basically, Abbasi stands for the proposition that expanding Bivens into new factual scenarios is disfavored activity by the judiciary.  And that the separation of powers principle is central to that position, as is congressional intent.  Kennedy, again, importantly stressed that the courts, in these situations will, most of the time, defer to Congress. 

 

      Now Abbasi specifically held that Bivens will not be extended in a new context.  And you've got to think back to the context in which Bivens was rendered.  The search and the violation of the Fourth Amendment, search and seizure provision without a warrant.  But that Abbasi held that Bivens will not be extended to note new context if there are special factors counseling hesitation in the absence of affirmative action by Congress.

 

      This special factors counseling hesitation test was not first announced in Abbasi, but it was first announced, I believe, in a case called Carlson stemming back to around 1980.  And what Abbasi did was to reinforce it and clarify, basically, what constitutes special factors.  So importantly, Abbasi also held that if a case is different from previous cases in which Bivens was extended, then the context is definitely a new one.  In which case, an appellate court should perform, actually must perform a special factors analysis before allowing such a claim to proceed.

 

      So, after the Fifth Circuit took the case back and reevaluated the Hernandez's claims in light of Abbasi, the Fifth Circuit, once again, affirmed the district court's dismissal of the plaintiff's complaint and held that Hernandez simply lacks a cause of action to sue.  In fact, the Fifth Circuit said that the facts in Hernandez, in light of Abbasi, don't even present a close case.  The facts definitely present, according to the Fifth Circuit, a new context for Bivens, in that it involves a cross-border shooting, in which the plaintiff's constitutional rights were not, or are not clearly established. 

     

      Now the court did apply the special factors analysis.  They did weigh them, and they weighed against extending Bivens.  And the special factors that the Fifth Circuit focused on were the national security implications, and they discussed all of these special factors at length.  But the national security implications in the case, the foreign affairs implications in the case, the fact that the injury occurred outside the borders of the United States, even though it may have been 20 or 30 feet, whatever it was—it did occur in an extra territorial setting—and the fact that there'd been, or has been, congressional, complete congressional inaction to address these kinds of cases.  And the Fifth Circuit also expressed concern on top of those special factors, that extending Bivens in this area could have detrimental, or a negative impact, in some way on the border patrol and how they perform their job.  And that it might make border patrol agents a bit more hesitant to do their job.

 

      Now some of this at oral argument was contested by particularly Justice Sotomayor and Kagan, but I'm going to hold off on getting to the justices for just a couple more minutes.  But following the Fifth Circuit's ruling -- so the Supreme Court granted the writ application again in the case.  But they granted it only on this one issue.  And the one issue is whether, or the way it's framed, is whether -- where the plaintiffs are alleging a rogue federal law enforcement agent has violated Sergio Hernandez's Fourth Amendment and his Fifth Amendment due process rights, all of which where there is no alternative legal remedy, should federal courts create, or at least recognize a claim under Bivens?

 

      Now, at oral argument, Hernandez argued, or his family's attorney argued out of the box, that a Bivens action here is not foreclosed at all because Sergio, he argues, was standing several feet on the Mexican side of the border.  And they argued that the special factors found by the Fifth Circuit should be absolutely discounted.  That the fortuity of where somebody might be standing when a gun is fired does not trigger the special factors, and more specifically, that these factors are no more special relating to foreign relations or national security by whether a victim is standing, let's say, 10 feet on one side of the border versus 10 feet on the other.  Saying it makes no difference.  That these factors would come into play regardless of where Sergio was standing in that culvert.

 

      Hernandez also made the point that extra territoriality did not militate against extending Bivens at all because the agent, in this case, was standing on U.S. soil when he fired his gun, when he had no idea, at the time, where the bullet would land, or no idea the nationality of the person he was shooting. 

 

      Now, as to other arguments raised by Hernandez, there were a number of them.  He argued, additionally, that there are no alternative remedies available, and that it's Bivens or nothing.  If the Supreme Court does not give him a Bivens action, he has no remedy, and no one is disputing that.  Hernandez also argued that a Bivens right of action in this case should be retained because it's in the law enforcement context.  And this is the core of Bivens action, he argues, and that the history of the Court, prior to Bivens, imposed damages under common law for actions of rogue federal officers that cause injury.  He argued that this case actually presents the perfect set of facts for extending Bivens because in all the previous cases where the Court has not extended Bivens, none involved a claim involving a rogue law enforcement officer.  Similarly, the Court, he argues, could draw, and should draw a line, and limit Bivens, or an extension of Bivens to only rogue law enforcement, again, stressing that this is a classic Bivens claim; the core of Bivens.

 

      Now, regarding the special factors, Hernandez argued, that even if this is a new context, the special factors raised by the defendant and the government in this case, are not dispositive.  You know, he argued that the foreign affairs and national security implications are absolutely not special here.  The same concerns would apply, regardless of where Sergio was standing.  Hernandez argued that the extra territorial factor is not a special one, at all, counseling hesitation either because the argument there, I believe was, because the case actually touches and concerns the U.S. territory with sufficient force to displace the presumption that does exist against creating an extra territorial right of action.

 

      With regard to the congressional action factor, he argued that it, too, does not counsel hesitation in applying Bivens because there are no examples, he said, of Congress specifically trying to preclude plaintiffs in similar situations seeking a civil remedy. 

 

      Now he also argued the Verdugo case.  The Verdugo case is a recent decision by the Supreme Court in which a DEA agent unlawfully searched a home of a Mexican national in Mexico.  And the Supreme Court disallowed a cause of action in that case.  But what Hernandez argued was, that although Verdugo disallows a private cause of action by a foreign national for an alleged Fourth Amendment violation, the cross-border shooting here, in this case, is more complicated and presents a more complicated Fourth Amendment inquiry. 

 

      Eight of the justices actually engaged both Hernandez and Mesa with questions, as well as the Solicitor General's representation.  Only Justice Thomas remained silent.  I'm sure Justice Thomas remained silent because he strongly signaled in the dissent in Hernandez one, Bivens should be limited in this case, should be limited to the facts in Bivens and should not be extended in the Hernandez case.  And he said that the facts in Hernandez are meaningfully different from Bivens, and Bivens progeny, particularly because Hernandez involved a cross-border shooting.  So Thomas, in his dissent in Hernandez One declined to extend Bivens.  So I think, clearly, Justice Thomas's mind, in this case, is made up.

 

      Now Justice Alito, who remained largely quiet during arguments, did underscore, at some point, that if the border patrol agent had been a state officer, and everything was the same with regard to the facts, Hernandez would not have had a claim in federal court against the state officer.  So I think he's raising this because, if he would not have a claim as a state officer, that would certainly militate against extending Bivens in this case.  So I think he was, at least, signaling some hesitancy in extending Bivens.

 

      Justice Ginsburg, she broached a number of questions during oral argument and she did so primarily to Hernandez.  Even though the Court must assume, for purposes of this case, the Court must assume that a Fourth Amendment violation occurred, in noting that the Court has already said, in Verdugo that a non-U.S. citizen injured abroad has no Fourth Amendment rights, she said that all this, then, seems like a dry discussion.  That if, at the end of the day, she said, if there's no federal constitutional right that can be asserted by non us citizens, effectively, why are we here?

 

      Hernandez, arguing that Verdugo held that there is no Fourth Amendment, or I'm sorry, acknowledging that Verdugo held no Fourth Amendment protection for a Mexican national where his home is searched by U.S. agents, argued back that the Fourth Amendment question here, in the context of a cross-border shooting is more complicated.  So I think Justice Ginsburg raised this question because if they were to extend, if the Court was to extend a Bivens action to Hernandez, they would send the case back to the Fifth Circuit to consider the Fourth Amendment, which Justice Ginsburg recognizes, or appears to recognize, might very well not apply under Verdugo.

 

      So Justice Ginsburg seemed to be wondering, I think, that even if they sent it back, how is Hernandez going to prove Fourth Amendment, or prove a Fourth Amendment violation at that point.  And to the extend that Hernandez's only argument seemed to be that there are possible Fourth Amendment issues independent of Verdugo, because this case involves a cross-border shooting, which involves more complicated Fourth Amendment analysis.  Now, that really was the only thing that he could respond with.  Even later on, and I'll get to, Justice Breyer recognized the inherent substantial Fourth Amendment problem in the case.

 

      But Justice Ginsburg didn't relent.  She continued to press on this issue, and then she asked, I think her next question was, if breaking into someone's home and searching and seizing, is not a Fourth Amendment violation because the person aggrieved is not a U.S. citizen and it happened in a foreign country, then she asked, why should a cross-border shooting be different?  Hernandez tried to answer this by arguing because of the uncertainty in lower courts as to how broadly Verdugo should be applied.  For example, he questioned whether Verdugo means there is an on/off switch, is the way he put it, at the border.  Or is it really more complicated when a cross-border situation is involved? 

 

      Whereas Justice Ginsburg seemed to be concerned at some level by the fact that, at the end of the day, Hernandez might have no Fourth Amendment rights at all, and with her questioning why Hernandez facts are any different, or at least should be applied differently than Verdugo, Chief Justice Roberts stressed the dramatic changes, historically, in how the Court now approaches implying rights of actions against federal agents, which the Court has consistently approached very cautiously over the last 30 years, or so.  So in that vein, Justice Roberts asked Hernandez, point blank, why should the Court create a new, implied right of action in this case? 

 

      Hernandez's response was that none of the cases, in which the Court had declined to imply a Bivens action involved a rogue law enforcement officer.  But Chief Justice Roberts clearly indicated that he feels this is definitely a new context for Bivens.  And he seemed the most concerned about the foreign relations aspect of the case.  So he, I guess in noting diplomatic correspondence that has been ongoing between Mexico and the U.S., he reminded counsel that the border patrol had conducted an investigation and determined what occurred was not contrary to border patrol policy. 

 

      The Chief Justice was clearly concerned that providing a Bivens remedy in this case could result in the opposite conclusion to what the border patrol had decided.  The import of that, according to Justice Roberts, is that we might wind up with a situation here, where federal courts disagree with the Executive Branch regarding what happened.  And also, with regard to what should be border patrol policy.  So clearly, he seemed to be convinced that this type of a thing makes this a new context for Bivens.  And he seemed to project some hesitation, I think, in going down that road because it could result in the courts, he said, and the Executive speaking with two voices when the country is supposed to speak with one voice in a foreign relations context. 

 

      So Hernandez responded and he said that it would make no difference whether the victim is standing just inside the U.S. border or just outside the U.S. border, that the same international relation issues would be present. 

 

      Justice Kavanaugh, so he focused on two or three issues.  The first one, he focused on was the legal presumption against the extra territorial application of federal statutes.  And he first seemed to acknowledge, or actually, he first acknowledged that even if Bivens was a statute, it would not apply under these circumstances because of the presumption against the extra territorial application of federal statutes.  He also raised the national security factor, noting that both Mesa and the government are arguing that what's at stake is not merely foreign policy implications, but also national security concerns in the context of border security, which he said, makes the case a different context than Bivens.  I think he was clear in his position, as the other justices, that this case presents a different context.  So here, he is agreeing with Chief Justice Roberts in that regard.  And if it is a new context, then the court, or the Fifth Circuit, is going to have to -- or if it is a new context, then the special factor analysis has to be employed.

 

      So Justice Kavanaugh also expressed, I think, with some skepticism, that foreign policy implications actually trap the border in a tight or neat manner.  Because if a foreign national is shot inside the U.S., he said, there would still be foreign policy implications.  And he also said that, while he sees this clearly as a new context for Bivens, he questioned whether they should consider the lack of available remedies.  I think he might have been the only justice to bring that up.  If there was another, it might have only been one.

 

      Let's turn to Justice Gorsuch.  He wanted to know where to draw the line.  He was skeptical that the line could be drawn at rogue law enforcement under the facts in Hernandez.  So he asked, why limit an extension of Bivens here to law enforcement, as opposed to other government functions that happen in the U.S. but injure someone abroad?  So he was very concerned about where to draw the line in how application of Bivens could be restricted.  And he was right to note, I think, that many types of cases encompass these facts, not just cross-border shootings.  When Hernandez said that he would draw the line only as far as necessary, meaning to encompass these facts of Hernandez, Justice Gorsuch jumped him a bit.  So we had a little of the fireworks here. 

 

      He told counsel, he said, I thought you would say that.  So he was concerned during this line of questioning—Justice Gorsuch was—that Hernandez would have the Court draw a line and say that any actions involving military operations, diplomatic operations, any operations of government would not qualify for a Bivens action, but only law enforcement.  So drawing the line in that fashion clearly gave Justice Gorsuch quite a bit of pause, because he did not seem willing, or at least he did not seem to think that it would be appropriate, or even proper, to draw a line to separate law enforcement from other forms of government operations.  So I don't think that Hernandez's argument, that rogue acts by law enforcement, carries enough weight to support the Court extending Bivens under these facts, at least from Justice Gorsuch's point of view. 

 

      Now, turning arguably to the more liberal side of the Court, Justice Sotomayor and Kagan, and even Justice Breyer, seemed to be planted squarely on the opposite side of the fence.  So first, let's talk about Justice Sotomayor.

 

      She was quick to point out that international rogue torts can be an important limiting principle, sort of harking back to Gorsuch's discussion.  So she stressed that they must, in this case, accept the facts as alleged in the complaint and accept the fact that the Fourth Amendment applies. And then there was no disagreement on that.  They are required to do that at this point in the case.  So she stressed, also, that the use of force on U.S. land, or that the use of force was on US. land, that the use of force is unreasonable because the claim in the complaint is that a young man was doing nothing wrong to deserve being shot and killed.  And to make her point even more clear on this, she specifically said that rogue actions, even on foreign soil, require a remedy.  I'll repeat that.  She said that rogue actions, even on foreign soil, require a remedy.  And she also expressed skepticism that the Court would be interfering with foreign policy or national security concerns of the Executive by creating a Bivens action in this case. 

 

      She stressed, emotionally to some extent, that the defendant here is a U.S. citizen; he was standing on U.S. soil; he was on U.S. soil when he pulled the trigger; and he is subject to U.S. law.  So based on the line of questioning with Justice Sotomayor, it does seem fairly clear to me, she is squarely in Hernandez's camp and is leaning strongly toward extending Bivens and sending the case back to the Fifth Circuit for Fourth Amendment consideration. 

 

      Now, Justice Kagan seemed to be aligned with her, as well.  Although Justice Kagan acknowledged that a judicial decision, let's say, what she meant was a jury decision in district court, if that were to happen in favor of Hernandez, it would put the Executive Branch in a very difficult situation, she said, with Mexico.  Even though she acknowledged that, she still was very skeptical as to why the victim, here, or any victim standing just inches on the Mexican side of that border would generate any more national security or foreign affairs concerns than if the same victim had been standing on the inside of the U.S. border.  And in this light, she offered a number of hypotheticals, which I'm going to skip and try to get to Justice Breyer right now.

 

      Justice Breyer, basically, took up the same mantle as Justices Kagan and Sotomayor.  He said the only real question before them is Abbasi.  He said that is whether a Bivens action for a clear rogue violation of the Fourth Amendment that takes place the way it did here, applies.  So questioning Mesa, Justice Breyer quoted Justice Kennedy in Abbasi, who wrote the opinion there.  And he stated that, or restated Justice Kennedy's standard, which is that the inquiry must focus on whether the judiciary is well suited, absent congressional action to weigh the costs and benefits of allowing the action to proceed.  So assuming the Fourth Amendment applies, which they have to assume, Justice Breyer focused on what the special problem might be in this situation.  And bringing a little humor into the discussion, he gave a hypothetical. 

 

      He said, you know there's never been a Bivens action in one of the Hawaiian islands.  And, in fact, there's never been a Bivens action in Hawaii at 7:02 in the evening.  But he said, if the action qualifies, regardless, you can still bring a Bivens action under those circumstances at 7:02 in the Hawaiian islands.  So he asked, why is this transnational shooting on the border different in terms of a problem, other than the fact that it might have been 7:02 in Hawaii?  He seemed to believe that he does not think, at all, that it makes a difference. 

 

      He acknowledged that he definitely sees a problem applying the Fourth Amendment, that it might apply or it might not apply, but he stressed that once they say the Fourth Amendment applies, which they have to do, and the Fourth Amendment applies just as much two feet on one side of the border as it does the nother, he did not see a problem, or the existence of a special problem of giving a remedy to a Mexican youth, as they would to an American youth standing a few feet on one side or the other of the border.  In fact, Mesa, for the most part, agreed with this analysis and acknowledged that it's no big difference between the two.  To which Justice Breyer said that he can't think of a difference either.  Which means, simply, that they would send the case back to the Fifth Circuit in order to consider the Fourth Amendment claim.

 

      Thank you very much.  I'm happy to discuss the case further or try to answer any questions you might have.

 

Micah Wallen:  You know, while we're waiting for the first question to come in, did you want to offer us a prediction?

 

Peter M. Thomson:  You know, predictions are always very difficult.  I think Justice Alito, Gorsuch, and Thomas will likely vote against extending Bivens in this situation.  Remember, Justice Alito, he brought up 1983, the state officer issue.  Justice Gorsuch addressed he was concerned about opening the door to a myriad of cases and was very concerned on how to draw a line in this case.  And Justice Thomas clearly, in his dissent, is against it.

 

      I think Justice Roberts likely will vote against extending.  He does recognize this is a new context.  Justice Kavanaugh, not quite sure.  He did raise the presumption against extraterritorial application of statutes.  He did realize this is a new context for Bivens.  I tend to think that there will be a majority, probably five against extending.  And I think Kagan, Sotomayor, and Breyer, clearly, are going to be on the other side.

 

      Justice Ginsburg, I'm not sure.  It's hard for me to know where she's going to fall.  But I think the reasons to not extend Bivens would be four reasons.  One, this is a new context.  I think there are probably enough special factors here to counsel hesitation against extending: foreign relations, national security, border security, and extraterritoriality issues.  The lack of congressional action here to address these kinds of issues, means Congress is speaking fairly loudly here, that they don't want judicial intervention.  And finally, even if the Court were to provide a remedy here under Bivens, the Fourth Amendment is likely not to apply here.  Which even Justice Breyer said, it's a real problem, and so did Justice Ginsburg.

 

Micah Wallen:  All right, thank you.  Well, we'll go ahead and go to our first caller.

 

Caller 1:  Hey, thank you, Peter, for the discussion.  Does qualified immunity come in only if there's a remand?  Because the Fifth Circuit held that there was qualified immunity from some, maybe from all of these claims.  And Mesa would -- and if there's a Bivens action, wouldn't Mesa be entitled to assert qualified immunity?

 

Peter M. Thomson:  So the Court in Hernandez One, I think I've already spoken to that. So it's the Fourth Amendment in Hernandez One.  Remember, it ruled that it was unnecessary for the Court to address the Fourth Amendment at the time, finding it was a sensitive issue.  But as to qualified immunity, the Court ruled that Mesa does not have qualified immunity.  And I think the reasoning is because in evaluating that claim, that you have to look at what the officer knew at the time, not what he found out later.  And there's no dispute that the officer did not know where his bullet would exactly land, did not know that Hernandez was a Mexican national, so he could have been a U.S. national.  So I think the Supreme Court clearly has voiced it's opinion there. 

 

      I'm not sure what they would do with that.  You're talking about if they remanded this case?

 

Caller 1:  Do you think they got their cart ahead of their horse?

 

Peter M. Thomson:  I think they've already, they've ruled, no qualified immunity.

 

Caller 1:  Yeah, it seems to me that that's something of a cart ahead of the horse.

 

Caller 2:  Peter, I really have two questions, and if you don't know the answers to them, I understand.  This is outside of the record that's in the case, so far.  But do you know if anybody raised the question that this might be a political question, which is nonjusticiable because it involves a executive department function?  Question is, do you know if the State Department has ever reached out, particularly during the Obama administration to try to settle these parent's claims without it going through the judicial system?

 

Peter M. Thomson:  To the second question on the State Department, I don't know what's happened internally or diplomatically between Mexico and the U.S.  Mexico definitely wants the Bivens claim to go forward.  They, I think, attempted to extradite Mesa.  The U.S. opposed extradition and opposes extradition, is whether the State Department -- and I know there are ongoing discussions between Mexico and the U.S. on this.  But as to the specifics, I'm really unsure.

 

      With regard to the political question, yeah, I think to some context that has been raised in the context of foreign relations and separation of powers.  And I think that was painted thoroughly in the briefs, and to some extent, in the argument, and the whole separation of powers, really, is at the heart, I think, of their decision, at the heart of Abbasi.  Strong arguments were made here, by Mesa and the SG, that the Supreme Court, if it were to extend Bivens under these circumstances, would really be overreaching, and effectively, legislating from the bench and delving into the world of foreign relations and issues better left to Congress. 

 

Micah Wallen:  All right and on behalf of The Federalist Society, I'd like to thank our expert for the benefit of his valuable time and expertise today.  We welcome listener feedback by email at info@fedsoc.org.  Thank you all for joining us.  We are adjourned.

     

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.