Guest Post by Lynn Ta. Lynn is a practicing attorney and an affiliated scholar with the Security and Political Economy Lab at the University of Southern California. Lynn was a judicial law clerk to the Honorable Harry Pregerson on the U.S. Court of Appeals for the Ninth Circuit and an attorney fellow at the American Civil Liberties Union of San Diego and Imperial Counties. She has represented victims of sex and labor trafficking, indigent defendants in their criminal appeals, and genocide survivors at the Extraordinary Chambers in the Courts of Cambodia. Lynn holds a Ph.D. in literature from the University of California, San Diego, and a juris doctor from the University of California, Berkeley School of Law. She currently works as an attorney for the National Labor Relations Board.

On November 12, 2019, the U.S. Supreme Court again heard oral arguments in Hernandez v. Mesa, a case involving the border shooting of an unarmed Mexican national at the hands of a U.S. federal agent. In 2010, Jesus Mesa, a U.S. border patrol agent standing on U.S. soil, shot his gun across the U.S.-Mexican border, killing a Mexican teenager, Sergio Hernandez, who was on the Mexican side of the border. Hernandez’s parents sued Mesa for civil penalties, arguing that Mesa violated Hernandez’s rights under the U.S. Constitution.

While justice for Hernandez’s death alone is crucial and necessary, the larger implication of this case is the overreach of federal law enforcement officials, particularly against the backdrop of the increasing militarization of the southern border. Indeed, in July of last year, the Pentagon announced that it would send an additional 2100 troops to the southwest border, thus further intensifying the potential for fraught border confrontations between federal agents and foreign civilians. The Supreme Court now has the opportunity to rein in unchecked federal authority by ruling in favor of Hernandez’s family. Otherwise, the shooting of Hernandez may well be the harbinger of more cross-border violence to come, especially if courts are unwilling to hold federal agents accountable for their conduct.

When the Supreme Court first issued its opinion in Hernandez in June 2017, it remanded the case to a lower appeals court without making a clear decision on the merits, and instead instructed the lower court to decide the case in light of the Supreme Court’s 2017 decision in Ziglar v. Abbasi, which denied a remedy to plaintiffs who were wrongfully held in federal custody. In March 2018, the lower court ruled in favor of Mesa; Hernandez’s parents again appealed to the Supreme Court. In this round, the justices requested government briefing on this case as well as Rodriguez v. Swartz, another cross-border shooting case coming out of the Ninth Circuit. Unlike in Hernandez, where Mesa alleged that he had detained Hernandez and his friends because they were throwing rocks at him, the on-duty border patrol agent in Rodriguez, Lonnie Swartz, cannot even claim a custodial stop based on probable cause. In 2012, Jose Antonio Elena Rodriguez, a Mexican teenager, was peacefully walking down a street that runs parallel to the border in Nogales, Mexico, when Swartz, standing on high ground on the U.S. side of the border, shot Rodriguez ten times in the back.

In my previous post on this case, I argued for the extraterritorial application of constitutional rights, insisting that courts should take an effective control approach, rather than a status-or-presence one. Under an effective control model, courts would look to the degree of control that federal authority exercised over an individual, rather than simply the nationality of the individual or the jurisdiction they were in. The issue that the Supreme Court now focuses on is whether Hernandez’s parents can pursue a Bivens remedy, which allows for monetary damages against a federal agent who acts under the color of law to violate an individual’s constitutional rights. The remedy stems from the 1971 Supreme Court case, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, where the Court found an implied cause of action against federal agents who conducted a warrantless search and arrest of an individual in violation of the Fourth Amendment. 

The Supreme Court has been conservative in extending this remedy beyond the context contemplated in Bivens, and has instructed federal courts to ‘respond cautiously to suggestions that Bivens remedies be extended into new contexts.’ And where a Bivens remedy may extend into a new context, the suit can only proceed if it satisfies two other requirements: that there are no alternative avenues of recourse available to the plaintiff, and that there are no ‘special factors counselling hesitation.’ In the nearly fifty years since Bivens, the Court has granted a Bivens remedy only twice, and in its most recent Bivens case, Ziglar v. Abbasi, the Supreme Court declined to extend a remedy to several Middle Eastern men who were detained in harsh conditions by federal officials after the September 11 attacks. 

Given the Supreme Court’s Bivens jurisprudence, it is unlikely that Hernandez’s family will prevail in this suit. The Court will almost certainly find that cross-border shootings constitute a new context, different from the warrantless search and arrest context in Bivens. Finding a new context is not fatal to the suit, and the Hernandez family can show that no alternative remedies are available to them, but there are options that the Court can retreat to to find that ‘special factors’ counsel hesitation, including the transnational nature of the crime and the diplomatic stakes involved. Indeed, the justices raised these issues during oral arguments, expressing concern that granting a Bivens remedy would interfere with U.S.-Mexico relations. And on the very off chance that Hernandez’s family can surmount the Bivens hurdles, they would still have to overcome Mesa’s qualified immunity defense.

But it does not have to be this way. The Supreme Court can easily choose to grant Hernandez’s family a remedy. In fact, the Ninth Circuit’s panel decision in Rodriguez practically serves up the opinion for the justices, deftly providing the legal justifications at each stage of the analysis as to why and how the suit can move forward. Where the Court may be concerned about diplomatic relations, the Ninth Circuit has aptly pointed out that Rodriguez’s mother (and by analogy, Hernandez’s family) is not attempting to sue the U.S. government, but rather a private individual. Indeed, the crux of the case lies in this key question of whether the Court can infer a private cause of action in the absence of statutory authority. But as Justice John Marshall Harlan noted in his concurrence in Bivens, the matter is quite simple: the Supreme Court has the authority to ‘recognize what has long been implicit in our decisions concerning equitable relief and remedies implied from statutory schemes; i.e., that a court of law vested with jurisdiction over the subject matter of a suit has the power—and therefore the duty—to make principled choices among traditional judicial remedies.’ What is at stake is the Supreme Court’s duty to make a principled choice among traditional judicial remedies. Here, there is no judicial remedy more traditional than monetary damages, and no choice more principled than to hold an individual accountable for murder.

The legal acrobatics that plaintiffs must undergo to shoehorn their way into a Bivens remedy are complex, but it is more critical now than ever to extend a Bivens remedy to the context of cross-border shootings. While the militarization of the U.S.-Mexico border has been going on for decades, we have been witnessing an unprecedented consolidation of military authority at the southwest border, essentially creating an atmosphere of war. In 2018, 4000 National Guard troops were sent to the southwestern border, while 5900 military troops were deployed to the region just prior to the midterm elections. Between 2010 and 2019, at least 90 people have died during encounters with border patrol agents. The president himself has even suggested that U.S. troops should shoot migrants attempting to cross the border, or at the very least, shoot them in the legs to slow them down. With both an accretion of military power at the border and a presidential posture of violence against migrants, what is inevitable is the increasingly violent interface between federal agents and Mexican civilians. If the Supreme Court is attempting to avert a diplomatic crisis, a ruling in favor of Mesa is not the way to do it. If anything, such a ruling would almost certainly escalate the number of shootings if border agents feel emboldened to do so with impunity. Holding a federal agent accountable for murder and reining in unbridled federal power does not counsel hesitation, it counsels principled judicial choices.

Note: The views expressed in this article are the author’s views alone and not those of the National Labor Relations Board or the United States Government.

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How to cite this blog post (Harvard style) 

Ta, L. (2020). Border Shooting Redux: Revisiting Accountability and Militarization at the U.S.-Mexico Border. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2020/01/border-shooting (Accessed [date])