Hernandez et al. v. Mesa et al.

HERNANDEZ et al. v. MESA et al.

certiorari to the united states court of appeals for

the fth circuit No. 15–118. Argued February 21, 2017—Decided June 26, 2017 Respondent Jesus Mesa, Jr., a United States Border Patrol agent, was standing on U. S. soil when he fatally shot Sergio Adrián Hernández Güereca, a 15-year-old Mexican national, who was standing on Mexican soil. Petitioners, Hernández's parents, sued Mesa under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, alleging that Mesa violated Hernández's Fourth and Fifth Amendment rights. The en banc Court of Appeals held that petitioners flailed to state a claim for a Fourth Amendment violation since Hernández, who was a Mexican citizen with no voluntary connection to the United States and was on Mexican soil when he was shot, was not entitled to Fourth Amendment protection under those circumstances. The court also held that regardless of whether Mesa's conduct violated the Fifth Amendment, Mesa was entitled to qualified immunity since it had not been clearly established at the time of the incident that his actions were unconstitutional. Because the court resolved petitioners' claims on these grounds, it did not consider whether petitioners could even bring suit under Bivens. Held: The Court of Appeals' judgment is vacated, and the case is remanded for further proceedings. A Bivens remedy is unavailable where there are “ `special factors counselling hesitation in the absence of affirmative action by Congress.' ” Carlson v. Green, 446 U. S. 14, 18. This Court recently clarified what constitutes a “special facto[r] counselling hesitation” in Ziglar v. Abbasi, 582 U. S. 120, 136, and the Court of Appeals here has not had the opportunity to consider how Abbasi's reasoning and analysis may bear on this case. With respect to petitioners' Fourth Amendment claim, while disposing of a Bivens claim by resolving the constitutional question is appropriate in many cases, the Fourth Amendment question here is sensitive and may have far-reaching consequences, and it would be imprudent for this Court to resolve that issue when, in light of Abassi's intervening guidance, doing so may be unnecessary to resolve this particular case. With respect to petitioners' Fifth Amendment claim, because Hernández's nationality and the extent of his ties to the United States were unknown to Mesa at the time of the shooting, the court below erred in granting qualified immunity based on those facts. 785 F. 3d 117, vacated and remanded.

Robert C. Hilliard argued the cause for petitioners. With him on the briefs were Deepak Gupta, Steve D. Shadowen, Cristobal M. Galindo , Stephen I. Vladeck, Jonathan E. Taylor, Rachel Bloomekatz, Matthew W. H. Wessler , Matthew Spurlock, and Leah M. Litman.

Randolph J. Ortega argued the cause for respondent Mesa. With him on the brief were Gabriel Perez, Felix Valenzuela, and Louis Elias Lopez, Jr.

Deputy Solicitor General Kneedler argued the cause for the United States under this Court's Rule 12.6 urging af-firmance. With him on the brief were Acting Solicitor General Gershengorn, Irving L. Gornstein, Brian H. Fletcher , Benjamin C. Mizer , Mark B. Stern, Mary Hampton Mason, and Henry C. Whitaker .*

This case involves a tragic cross-border incident in which a United States Border Patrol agent standing on United States soil shot and killed a Mexican national standing on Mexican soil. The three questions presented concern whether the parents of the victim of that shooting may assert claims for damages against the agent under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971); whether the shooting violated the victim's Fourth Amendment rights; and whether the agent is entitled to qualified immunity on a claim that the shooting violated the victim's Fifth Amendment rights.

Because this case was resolved on a motion to dismiss, the Court accepts the allegations in the complaint as true for purposes of this opinion. See Wood v. Moss, 572 U. S. 744, 757–758 (2014). On June 7, 2010, Sergio Adrián Hernán-dez Güereca, a 15-year-old Mexican national, was with a group of friends in the concrete culvert that separates El Paso, Texas, from Ciudad Juarez, Mexico. Now all but dry, the culvert once contained the waters of the Rio Grande River. The international boundary runs down the middle of the culvert, and at the top of the embankment on the United States side is a fence. According to the complaint, Hernán-dez 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. At some point, Border Patrol Agent Jesus Mesa, Jr., arrived on the scene by bicycle and detained one of Hernández's friends in United States territory as the friend ran down the embankment. Hernán-dez ran across the international boundary into Mexican territory and stood by a pillar that supports a railroad bridge spanning the culvert. While in United States territory, Mesa then fred at least two shots across the border at Hern-ández. One shot struck Hernández in the face and killed him. According to the complaint, Hernández was unarmed and unthreatening at the time.

Petitioners—Hernández's parents—brought suit. Among other claims, petitioners brought claims against Mesa for damages under Bivens, alleging that Mesa violated Hernán-dez's rights under the Fourth and Fifth Amendments. The United States District Court for the Western District of Texas granted Mesa's motion to dismiss. A panel of the Court of Appeals for the Fifth Circuit affirmed in part and reversed in part. The panel held that Hernández lacked any Fourth Amendment rights under the circumstances, but that the shooting violated his Fifth Amendment rights. Her-nandez v. United States, 757 F. 3d 249, 267, 272 (2014); id., at 280–281 (Dennis, J., concurring in part and concurring in

On rehearing en banc, the Court of Appeals unanimously affirmed the District Court's dismissal of petitioners' claims against Mesa. The en banc Court of Appeals first held that petitioners had flailed to state a claim for a violation of the Fourth Amendment because Hernández 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.” Hernandez v. United States, 785 F. 3d 117, 119 (CA5 2015) (per curiam ) (quoting United States v. Verdugo- Urquidez, 494 U. S. 259, 271 (1990)). As to petitioners' claim under the Fifth Amendment, the en banc Court of Appeals 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 quali-fed immunity. 785 F. 3d, at 120. The en banc Court of Appeals explained that “[n]o case law in 2010, when this episode occurred, reasonably warned Agent Mesa” that “the general prohibition of excessive force applies where the person injured by a U. S. official standing on U. S. soil is an alien who had no significant voluntary connection to, and was not in, the United States when the incident occurred.” Ibid. Because the en banc Court of Appeals resolved petitioners' claims on other grounds, it “did not consider whether, even if a constitutional claim had been stated, a tort remedy should be crafted under Bivens.” Id., at 121, n. 1 (Jones, J., concurring). Ten judges filed or joined five separate concurring opinions. Id., at 121–143.

The Court turns first to the Bivens question, which is “antecedent” to the other questions presented. Wood, 572 U. S., at 757. In Bivens, this Court “recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights.” Correctional Services Corp. v. Malesko , 534 U. S. 61, 66 (2001). A Bivens remedy is not available, however, where there are “ `special factors counselling hesitation in the absence of affirmative action by Congress.' ” Carlson v. Green, 446 U. S. 14, 18 (1980) (quoting Bivens, 403 U. S., at 396). In the decision recently announced in Ziglar v. Abbasi, 582 U. S. 120 (2017), this Court has clarified what constitutes a “special facto[r] counselling hesitation.” See id., at 136, 140–146. “[T]he inquiry,” the Court explains, “must concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.” Id., at 136.

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. This Court, after all, is one “ `of review, not of first view.' ” Expressions Hair Design v. Schneiderman, 581 U. S. 37, 48 (2017) (quoting Nautilus, Inc. v. Biosig Instruments, Inc., 572 U. S. 898, 913 (2014).

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 Hernández lacked any Fourth Amendment rights under the circumstances. This approach—disposing of a Bivens claim by re-

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 Hernández was “an alien who had no significant voluntary connection to . . . the United States.” 785 F. 3d, at 120. 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 doctrine of qualified immunity shields officials from civil liability so long as their conduct `does not violate clearly established . . . constitutional rights of which a reasonable person would have known.' ” Mullenix v. Luna, 577 U. S. 7, 11 (2015) (per curiam ) (quoting Pearson v. Callahan, 555 U. S. 223, 231 (2009)). The “dispositive inquiry in determin-ing whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U. S. 194, 202 (2001). The qualified immunity analysis thus is limited to “the facts that were knowable to the defendant off-cers” at the time they engaged in the conduct in question. White v. Pauly, 580 U. S. 73, 77 (2017) (per curiam ). Facts an officer learns after the incident ends—whether those facts would support granting immunity or denying it—are not relevant.

The facts alleged in the complaint depict a disturbing incident resulting in a heartbreaking loss of life. Whether petitioners may recover damages for that loss in this suit depends on questions that are best answered by the Court of Appeals in the first instance.

The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Gorsuch took no part in the consideration or decision of this case.

Justice Thomas, dissenting.

When we granted certiorari in this case, we directed the parties to address, in addition to the questions presented by petitioners, “[w]hether the claim in this case may be asserted under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971).” 580 U. S. 915 (2016). I would answer that question, rather than remand for the Court of Appeals to do so. I continue to adhere to the view that “Bivens and its progeny” should be limited “to the precise circumstances that they involved.” Ziglar v. Abbasi, 582 U. S. 120, 157 (2017) (Thomas, J., concurring in part and concurring in judgment) (internal quotation marks omitted). This case arises in circumstances that are meaningfully different from those at issue in Bivens and its progeny. Most notably, this

Justice Breyer , with whom Justice Ginsburg joins, dissenting.

The parents of Sergio Adrián Hernández Güereca brought this constitutional tort action against a United States Border Patrol agent, Jesus Mesa, Jr. They claim that Mesa violated their son's constitutional rights when Mesa shot and killed him on June 7, 2010. Hernández and some of his friends had been running back and forth across a Rio Grande River culvert that straddles the border between the United States and Mexico. When Mesa shot him, Hernández had returned to, and was on, the Mexican side of the culvert.

The Court of Appeals, affirming the District Court, held (among other things) that Hernández had no Fourth Amendment rights because he was not a citizen of the United States, he was “on Mexican soil at the time he was shot,” and he “had no `significant voluntary connection' to the United States.” Hernandez v. United States, 785 F. 3d 117, 119 (2015) (per curiam ) (quoting United States v. Verdugo- Urquidez, 494 U. S. 259, 271 (1990)). I would reverse the Court of Appeals' Fourth Amendment holding. And, in my view, that reversal would ordinarily bring with it the right to bring an action for damages under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). See Wood v. Moss, 572 U. S. 744, 754 (2014) (Bivens actions lie for Fourth Amendment violations); Tennessee v. Garner , 471 U. S. 1, 11 (1985) (officer's application of lethal force when there is no immediate threat to self or others violates the Fourth Amendment). See also Ziglar v. Abbasi, 582 U. S. 120, 160 (2017) (Breyer , J., dissenting).

I recognize that Hernández was on the Mexican side of the culvert when he was shot. But we have written in a case involving the suspension of habeas corpus that “de jure sov-

First, the defendant is a federal officer. He knowingly shot from United States territory into the culvert. He did not know at the time whether he was shooting at a citizen of the United States or Mexico, nor has he asserted that he knew on which side of the boundary line the bullet would land.

Second, the culvert itself has special border-related physical features. It does not itself contain any physical features of a border. Rather, fences and border crossing posts are not in the culvert itself but lie on either side. Those of Mex-ico are on the southern side of the culvert; those of the United States are on the northern side. The culvert (where the shooting took place) lies between the two fences, and consists of a concrete-lined empty space that is typically 270 fleet wide.

Third, history makes clear that nontechnically speaking, the culvert is the border; and more technically speaking, it is at the least a special border-related area (sometimes known as a “limitrophe” area, see infra, at 559). Originally, the 1848 Treaty of Guadalupe Hidalgo provided that the boundary should run “up the middle” of the Rio Grande River “following the deepest channel.” See Art. V , July 4, 1848, 9 Stat. 926. It also provided that “navigation . . . shall be free . . . to the vessels and citizens of both countries.” Art. VII, id., at 928. Subsequently the river jumped its banks, setting a new course, and provoking serious disputes about the border's location. See S. Liss, A Century of Disagreement: The Chamizal Conflict 1864–1964, p. 15 (1965)

Fourth, a jointly organized international boundary commission built, and now administers, the culvert. Once created, the Commission arranged for surveys, acquired rights of way, and built and paved the massive culvert structure. See Appendix, fg. 1, infra (typical cross-section of the proposed concrete “culvert”); see also International Boundary and Water Commission, United States and Mexico, Preliminary Plan (July 25, 1963), Annex to Chamizal Convention, 15 U. S. T., following p. 36. The United States contributed approximately $45 million of the total cost. See Compliance With Convention on the Chamizal, S. Rep. No. 868, 88th Cong., 2d Sess., 2 (1963); Act To Facilitate Compliance With the Convention Between United States and United Mexican States, § 8, 78 Stat. 186. The United States and Mexico have jointly agreed to maintain the Rio Grande and jointly to

Fifth, international law recognizes special duties and obligations that nations may have in respect to “limitrophe” areas. Traditionally, boundaries consisted of rivers, mountain ranges, and other areas that themselves had depth as well as length. Lord Curzon of Kedleston, Frontiers 12–13 (2d ed. 1908). It was not until the late 19th century that effective national boundaries came to consist of an engineer's “imaginary line,” perhaps thousands of miles long, but hav-ing “no width.” Reeves, International Boundaries, 38 Am. J. Int'l L. 533, 544 (1944); see also 1 Oppenheim's International Law 661, n. 1 (R. Jennings & A. Watts eds., 9th ed. 1992). Modern precision may help avoid conflicts among nations, see, e. g., Rio Grande and Colorado River Treaty, preamble, 23 U. S. T., at 373, but it has also produced boundary areas—of the sort we have described—which are “ `subject to a special legal, political and economic regime of internal and international law,' ” Andrassy, Les Relations Internationales de Voisinage, in The Hague Academy of Int'l Law, 1951 Recuiel des Cours 131 (quoting P. de Lapradelle, La Frontiere 14 (1928)). Those areas are subject to a special obligation of cooperation and good neighborliness, V . Lowe, International Law 151 (2007) (describing the “regime of voi-sinage,” which includes “jointly administered infrastructure facilities, . . . co-operation between neighboring police forces, . . . bilingual road signs, . . . shared access to common resources,” and the like); cf. United Nations Convention on the Law of the Sea, Art. 111(8), Dec. 10, 1982, 1833 U. N. T. S. 396 (requiring compensation for loss arising from the erroneous

Sixth, not to apply the Fourth Amendment to the culvert would produce serious anomalies. Cf. Verdugo-Urquidez, 494 U. S., at 278 (Kennedy , J., concurring). The Court of Appeals' approach creates a protective difference depending upon whether Hernández had been hit just before or just after he crossed an imaginary mathematical borderline running through the culvert's middle. But nothing else would have changed. The behavior of the United States Border Patrol agent, along with every other relevant feature of this case, would have remained the same. Given the near irrelevance of that midculvert line (as compared with the rest of the culvert) for most border-related purposes, as well as almost any other purpose, that result would seem anomalous.

Moreover, the anomalies would multiply. Numerous bridges span the culvert, linking El Paso and Ciudad Juarez. See Chamizal Convention, Arts. 8–10, 15 U. S. T., at 25–26. “Across this boundary thousands of Americans and Mexicans pass daily, as casually as one living inland crosses a county line.” Liss, supra, at 4; Semuels, Crossing the Mexican- American Border, Every Day, The Atlantic, Jan. 25, 2016, online at https://www.theatlantic.com/ business/archive/2016/ 01/crossing-the-mexican-american-border-every-day/426678/; Brief for Border Scholars as Amici Curiae 21–22 (Fifty-five percent of households in the sister cities cross the border to comparison shop for everyday goods and Mexican shoppers spend $445 million each year in El Paso businesses). It does not make much sense to distinguish for Fourth Amendment purposes among these many thousands of individuals on the basis of an invisible line of which none of them is aware.

These six sets of considerations taken together provide 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

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. See Ziglar v. Abbasi, 582 U. S. 120; but see id., at 160 (Breyer , J., dissenting).

For these reasons, with respect, I dissent.

Figure 1. International Boundary and Water Commission, United States and Mexico, Relocation of Rio Grande, El Paso, Texas–Ciudad Juarez, Chihuahua, Preliminary Plan (July 25, 1963), Annex to Chamizal Convention, 15 U. S. T., following p. 36, T. I. A. S. No. 5515. Figure 2. President Lyndon Johnson and Mrs. Lady Bird Johnson view the new channel. Associated Press, Dec. 13,