Supreme Court Border-Shooting Non-Decision Confirms My Fears Regarding Bivens Actions

by Michael Dorf
(cross-posted on Take Care)

Yesterday's SCOTUS ruling in Hernandez v. Mesa decided one question and punted on two. After explaining what the case decided and what it did not, I'll explain why one of the punts confirms my fear--expressed in a DoL post last week that was cross-posted on Take Care--that federal civil rights actions against federal officers are practically a dead letter.

People inside the United States have Fourth Amendment rights; non-citizens outside the U.S. who lack voluntary connections to the U.S. lack Fourth Amendment rights because, according to the 1990 SCOTUS decision in U.S. v. Verdugo-Urquidez, they are not among "the people" to whom the Fourth Amendment refers. The Hernandez case is like a tragic real-life version of the sort of hypothetical question that a law professor would ask to explore the intersection of these two propositions.

Fifteen-year-old Mexican national Sergio Hernandez and three friends were playing in a culvert that separates the United States and Mexico when he was fatally shot by a U.S. border patrol agent. Hernandez was on the Mexican side of the border when he was shot, so the U.S. Court of Appeals for the Fifth Circuit held that the Verdugo principle applied--even though the U.S. agent, Jesus Mesa, was on the U.S. side when he fired his weapon. The Supreme Court vacated and remanded.

(1) One issue on which the Court did not punt was qualified immunity. The lower court had included the fact that Hernandez was a Mexican national as among the factors that went into its determination that Mesa was entitled to qualified immunity. At the time of the shooting, the Fifth Circuit said, it was not clearly established that shooting at a foreign national under these circumstances violates the foreign national's constitutional rights. That's got to be and is wrong, the SCOTUS said: Whether an officer has qualified immunity depends on whether a reasonable officer in his shoes was on clear notice that what he was doing violated the plaintiff's rights--but because Mesa did not know the nationality of Hernandez when Mesa shot him, nationality is irrelevant to the qualified immunity determination in this case. So far so good.

(2) The Court punted on the substantive Fourth Amendment question. Justices Breyer and Ginsburg, in dissent, thought it clear that there was a Fourth Amendment violation. Relying on Verdugo in this sort of case, they said, was unduly formalistic. But the per curium opinion (on behalf of CJ Roberts and Justices Kennedy, Alito, Sotomayor, and Kagan) declined to reach the Fourth Amendment issue, which it deemed sensitive and thus best obviated if possible by a ruling on a different ground. That brings us to the Court's other seeming punt.

(3) The big action in the case was this: The SCOTUS vacated and remanded for reconsideration in light of its recent ruling in Ziglar v. Abbasi, in which the Court said that in order for a private plaintiff to be able to sue a federal official for a violation of civil rights--i.e., to bring a so-called Bivens action--a court must first determine whether there are "special factors counseling hesitation" pursuant to a standard that makes it very difficult to rely on prior cases allowing Bivens actions if there are any differences between the earlier precedent and the new case.

I wrote last week that Abbasi "all but overrules Bivens." Steve Vladeck made similar pronouncements. Responding, Richard Re thought that Prof. Vladeck and I were overstating the impact of Abbasi. We should keep our powder dry, Prof. Re implied, for when Bivens is really overruled. After all, the Abbasi Court said it was preserving Bivens in the search-and-seizure context. Re asked: "if the Court eventually rules against a Bivens remedy in the search-and-seizure context, would Bivens have been 'all but overruled' or 'all-but limited … to its facts' for a second time?"

Well, guess what just happened. The Court in Hernandez said that the Fifth Circuit ought to consider whether there is any Bivens remedy at all here, because maybe there isn't--even though Hernandez itself arises in the search-and-seizure context. (When a law enforcement officer shoots someone that is a "seizure" of the person.) Thus, Prof. Vladeck and I are not a couple of Chicken Littles (Chickens Little?). The Bivens sky really is falling.

Here's another way of looking at it. Preserving Bivens in the search-and-seizure context does not mean anything if, in every search-and-seizure case, a court must ask anew whether there are special factors counseling hesitation, because even very small differences between prior cases and the new case require this inquiry to be conducted afresh. And that is exactly what Abbasi instructs.

Finally, I cheerily hope that despite the evidence that I am right, I will be proven wrong. In Abbasi the Court outright rejects a Bivens action for one set of claims (regarding detention policy) and remands for application of its strict Bivens framework for another set of claims (regarding prisoner abuse). And the Court in Hernandez also remands. It is possible that in both cases on remand the courts could conclude that there are not special factors counseling hesitation that preclude a Bivens action and that such a ruling would be sustained by the SCOTUS. I hope that is what happens and that I am shown to be a Chicken Little after all. But I wouldn't bet on that happening.