Hernández v. Mesa
On June 7, 2010, in a culvert on the border between the U.S. and Mexico, U.S. Border Patrol agent Jesus Mesa fatally shot Sergio Hernández, a 15-year-old Mexican boy, without justification or provocation. At the time of the shooting, Mesa was in U.S. territory, while Hernández was on Mexican soil. Six months after the shooting, Hernández’s family sued Agent Mesa for damages, arguing that Mesa’s arbitrary use of deadly force violated the Fourth Amendment. Agent Mesa countered that the Fourth Amendment did not apply because Hernández was standing in Mexican territory at the time of the shooting. The lower courts dismissed the Hernández family’s claims. In a divided en banc decision, the Fifth Circuit held that the Hernández family could not assert a claim under the Fourth Amendment because Hernández was a Mexican citizen who was on Mexican territory at the time of the shooting. Hernández’s family appealed this decision to the Supreme Court. On October 11, the Supreme Court agreed to hear the case and asked the parties to brief the additional question of whether the Hernandez family has a right to sue for damages under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).
On December 9, 2016, CAC filed a friend-of-the-court brief on behalf of the Hernández family urging the Court to hold that they may bring suit under Bivens to remedy abuse of government power and ensure compliance with the limits the Fourth Amendment places on the use of force by law enforcement officers. In our brief, we argued that Article III of the Constitution created a federal judiciary with broad power to enforce the Constitution’s limitations on the power of government in cases that came before them. Under our Constitution, courts perform an essential checking function on the political branches of government, ensuring compliance with the Constitution’s protection of individual rights. Our brief further demonstrated that the Framers incorporated into Article III the crucial notion that where there is a legal right, there is also a legal remedy for violation of that right. Finally, our brief showed that the Framers viewed civil damages actions—the very kind of suit permitted under Bivens—as the quintessential method of ensuring that government respects the limits on its authority. Based on this text and history, we argued that the Hernández family is entitled to sue for damages to ensure federal agents respect the Fourth Amendment’s limitations and maintain the rule of law.
The Court heard oral argument on February 21, 2017. On June 26, 2017, the Court issued a per curiam opinion, sending the case back to the Fifth Circuit to reconsider the Bivens question in light of the Court’s decision earlier in the Term in Ziglar v. Abbasi.
December 9, 2016
CAC files a merits stage amicus briefSupreme Court Merits Stage Amicus Brief