In a culvert on the border between the United States and Mexico, controlled by the United States, 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. Hernández’s family sued Agent Mesa for damages, arguing that his arbitrary use of deadly force violated the Fourth Amendment. Agent Mesa countered that the Fourth Amendment does not apply because Hernández was standing in Mexican territory at the time of the shooting. In a divided en banc decision, the United States Court of Appeals for 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 then petitioned the Supreme Court to review this decision.

In October 2016, the Supreme Court agreed to hear the case and asked the parties to brief the additional question of whether the Hernández family had a right to sue for damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), a case that allows individuals to seek monetary compensation from federal officials who have violated their constitutional rights. CAC filed a friend-of-the-court brief on behalf of the Hernández family arguing that the family members could sue under Bivens. In June 2017, the Court sent the case back to the Fifth Circuit to reconsider the Bivens question in light of the Court’s intervening decision in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). The en banc Fifth Circuit then held that the Hernández family could not sue under Bivens. The family again petitioned the Supreme Court, which granted certiorari in May 2019.

As we did in 2016, CAC filed a friend-of-the-court brief urging the Court to hold that the Hernández family may bring suit under Bivens to remedy abuse of government power and ensure compliance with the limits that the Fourth Amendment places on the use of force by law enforcement officers. In our brief, we explain that Article III of the Constitution created a federal judiciary with broad power to enforce the Constitution’s limitations on government power. 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 demonstrates 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. Furthermore, our brief shows that the Framers viewed civil damages actions—the very kind of suit permitted under Bivens—as the quintessential method of ensuring that government officers respect the limits that the Fourth Amendment places on their authority. Finally, our brief describes how courts in the Founding generation vindicated Fourth Amendment rights by granting damages remedies for unlawful seizures in common-law tort suits against the offending officers. Based on this text and history, we argue that the Hernández family is entitled to sue for damages to ensure that federal agents respect the Fourth Amendment’s limitations and maintain the rule of law.

In a 5-4 decision, the latest in a string of decisions that close the courthouse doors on those seeking to redress abuse of power by federal officers, the Supreme Court held that that the Hernández family may not bring suit under Bivens.  In a dissenting opinion, Justice Ruth Bader Ginsburg argued that there was “no good reason why Hernández’s parents should face a closed courtroom door” and noted that unlawful killing by border guards was no “isolated instance.”