Bivens at the Border: Special Factors in Assessing Bivens Actions for Cross-Border Killings

Earlier this year, the United States Supreme Court heard oral argument in the Hernandez v. Mesa case. In that case, a fifteen-year old Mexican national, Sergio Hernandez, was shot and killed by a U.S. Border Patrol agent. Sergio and his friends were playing in a cement culvert, running back and forth across the border. A U.S. Border Patrol agent approached the boys, detained one and then fatally shot Sergio as he was standing on the Mexican side of the border.

Sergio's family sued the United States and the agent alleging that Sergio was protected under the 4th and 5th Amendments to the Constitution. The district court determined that Sergio, a non-citizen outside the U.S., lacked voluntary connections to the U.S. and therefore lacked 4th and 5th Amendment constitutional rights. The district court dismissed the case. On appeal to the United States Court of Appeals for the 5th circuit, a three-judge panel determined that Sergio had 5th amendment rights, but no 4th Amendment rights, and that the agent was entitled to qualified immunity. An en banc 5th Circuit reversed the panel's decision and dismissed the Plaintiffs' claims in their entirety.

Sergio's family appealed to the U.S. Supreme Court. The U.S. Supreme Court reversed and remanded, instructing the 5th Circuit to reconsider its ruling against Sergio's family in light of Ziglar v. Abassi, another recent case in which the Court limited the right of federal detainees to bring a Bivens action against federal officials for abuse. This course examines the Hernandez case in light of Abassi and discusses whether and how Abassi changes the landscape for Bivens claims.

Learning Objectives:

1. Review the facts of Mesa and the different analyses presented to the Court
2. Discuss current Bivens jurisprudence and possible changes in light of Abassi and Mesa
3. Consider the potential outcome of Mesa at the Fifth Circuit based on Abassi