Hernandez v. Mesa

(Slip Opinion) Cite as: 582 U. S. ____ (2017) 1

Per Curiam

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash­

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 15–118

_________________

JESUS C. HERNANDEZ, ET AL., PETITIONERS v.

JESUS MESA, JR., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[June 26, 2017]

PER CURIAM.

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.

___, ___ (2014) (slip op., at 12). On June 7, 2010, Sergio

Adrián Hernández Güereca, a 15-year-old Mexican na­

tional, was with a group of friends in the cement culvert

that separates El Paso, Texas, from Ciudad Juarez, Mex-

ico. Now all but dry, the culvert once contained the waters

of the Rio Grande River. The international boundary runs

2 HERNANDEZ v. MESA

Per Curiam

down the middle of the culvert, and at the top of the em­

bankment on the United States side is a fence. According

to the complaint, Hernández 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. Hernández 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

fired at least two shots across the border at Hernández.

One shot struck Hernández in the face and killed him.

According to the complaint, Hernández was unarmed and

unthreatening at the time.

The Department of Justice investigated the incident.

The Department concluded that the shooting “occurred

while smugglers attempting an illegal border crossing

hurled rocks from close range at a [Customs and Border

Patrol] agent who was attempting to detain a suspect.”

Dept. of Justice, Office of Public Affairs, Federal Officials

Close Investigation Into the Death of Sergio Hernandez-

Guereca (Apr. 27, 2012), online at http://www.justice.

gov/opa/pr/federal-officials-close-investigation-death-sergio­

hernandez-guereca (as last visited June 23, 2017). “[O]n

these particular facts,” the Department determined, “the

agent did not act inconsistently with [Customs and Border

Patrol] policy or training regarding use of force.” Ibid.

The Department also declined to bring federal civil rights

charges against Mesa. In the Department’s view, there

was insufficient evidence that Mesa “acted willfully and

with the deliberate and specific intent to do something the

law forbids,” and, in any event, Hernández “was neither

within the borders of the United States nor present on

U. S. property, as required for jurisdiction to exist under

Cite as: 582 U. S. ____ (2017) 3

Per Curiam

the applicable federal civil rights statute.” Ibid. The

Department expressed regret for the loss of life in the

incident and pledged “to work with the Mexican govern­

ment within existing mechanisms and agreements to

prevent future incidents.” Ibid.

Petitioners—Hernández’s parents—brought suit. Among

other claims, petitioners brought claims against Mesa for

damages under Bivens, alleging that Mesa violated Her­

nández’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. Hernandez v. United States, 757 F. 3d 249, 267,

272 (2014); id., at 280–281 (Dennis, J., concurring in part

and concurring in judgment); id., at 281 (DeMoss, J.,

concurring in part and dissenting in part). The panel also

found “no reason to hesitate in extending Bivens to this

new context.” Id., at 275. And the panel held that Mesa

was not entitled to qualified immunity, concluding that

“[n]o reasonable officer would have understood Agent

Mesa’s alleged conduct to be lawful.” Id., at 279. Judge

DeMoss dissented in part, arguing that Hernández lacked

any Fifth Amendment rights under the circumstances.

Id., at 281–282.

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 failed to state a claim for a viola­

tion of the Fourth Amendment because Hernández was “a

Mexican citizen who had no ‘significant voluntary connec­

tion’ 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.

4 HERNANDEZ v. MESA

Per Curiam

Verdugo-Urquidez, 494 U. S. 259, 271 (1990)). As to peti­

tioners’ 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 qualified 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 signif­

icant 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 constitu­

tional claim had been stated, a tort remedy should be

crafted under Bivens.” Id., at 121, n. 1 (Jones, J., concur­

ring). Ten judges filed or joined five separate concurring

opinions. Id., at 121–143.

This Court granted certiorari. 580 U. S. ___ (2016). The

Court now vacates the judgment of the Court of Appeals

and remands for further proceedings.

The Court turns first to the Bivens question, which is

“antecedent” to the other questions presented. Wood, 572

U. S., at ___ (slip op., at 11). In Bivens, this Court “recog­

nized for the first time an implied right of action for dam­

ages 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, ante, p. ___, this Court

has clarified what constitutes a “special facto[r] counsel-

ling hesitation.” See ante, at 12–14, 17–23. “[T]he in­

Cite as: 582 U. S. ____ (2017) 5

Per Curiam

quiry,” 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.” Ante, at 12.

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. ___, ___ (2017) (slip op., at 10)

(quoting Nautilus, Inc. v. Biosig Instruments, Inc., 572

U. S. ___, ___ (2014) (slip op., at 14)).

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 resolving the constitutional question, while as­

suming the existence of a Bivens remedy—is appropriate

in many cases. This Court has taken that approach on

occasion. See, e.g., Wood, supra, at ___ (slip op., at 11).

The Fourth Amendment question in this case, however, is

sensitive and may have consequences that are far reach­

ing. It would be imprudent for this Court to resolve that

issue when, in light of the intervening guidance provided

in Abbasi, doing so may be unnecessary to resolve this

particular case.

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

6 HERNANDEZ v. MESA

Per Curiam

to . . . the United States.” 785 F. 3d, at 120. It is undis­

puted, 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. ___, ___ (2015) (per curiam) (slip op., at 4–5)

(quoting Pearson v. Callahan, 555 U. S. 223, 231 (2009)).

The “dispositive inquiry in determining whether a right is

clearly established is whether it would be clear to a rea­

sonable officer that his conduct was unlawful in the situa­

tion 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 officers” at

the time they engaged in the conduct in question. White v.

Pauly, 580 U. S. ___, ___ (2017) (per curiam) (slip op., at

3). Facts an officer learns after the incident ends—

whether those facts would support granting immunity or

denying it—are not relevant.

Mesa and the Government contend that Mesa is entitled

to qualified immunity even if Mesa was uncertain about

Hernández’s nationality and his ties to the United States

at the time of the shooting. The Government also argues

that, in any event, petitioners’ claim is cognizable only

under the Fourth Amendment, and not under the Fifth

Amendment. This Court declines to address these argu­

ments in the first instance. The Court of Appeals may

address them, if necessary, on remand.

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

Cite as: 582 U. S. ____ (2017) 7

Per Curiam

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.

Cite as: 582 U. S. ____ (2017) 1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 15–118

_________________

JESUS C. HERNANDEZ, ET AL., PETITIONERS v.

JESUS MESA, JR., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[June 26, 2017]

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. ___ (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. Ab-

basi, ante, at 2 (THOMAS, J., concurring in part and con-

curring 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 case involves cross-border conduct, and

those cases did not. I would decline to extend Bivens and

would affirm the judgment of the Court of Appeals on that

basis.

Cite as: 582 U. S. ____ (2017) 1

BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 15–118

_________________

JESUS C. HERNANDEZ, ET AL., PETITIONERS v.

JESUS MESA, JR., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[June 26, 2017]

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 bor­

der 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. ___, ___ (2014) (slip op., at 11)

2 HERNANDEZ v. MESA

BREYER, J., dissenting

(Bivens actions lie for Fourth Amendment violations);

Tennessee v. Garner, 471 U. S. 1, 11 (1985) (officer’s appli­

cation of lethal force when there is no immediate threat to

self or others violates the Fourth Amendment). See also

Ziglar v. Abbasi, ante, p. 1 (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 sovereignty” is not and never has been “the only

relevant consideration in determining the geographic

reach of the Constitution.” Boumediene v. Bush, 553 U. S.

723, 764 (2008). We have added that our precedents make

clear that “questions of extraterritoriality turn on objec­

tive factors and practical concerns, not formalism.” Ibid.;

see also id., at 759–762. Those factors and concerns here

convince me that Hernández was protected by the Fourth

Amendment.

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 Mexico 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 feet 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 4). Originally,

Cite as: 582 U. S. ____ (2017) 3

BREYER, J., dissenting

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 coun­

tries.” 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) (the river’s “ravages . . . irreparably

destroyed any semblance of a discernable United States

boundary line in the Ciudad Juarez-El Paso area”). In the

1960’s, however, the United States and Mexico negotiated

a new boundary. The two nations working together would

“relocat[e]” the river channel. Convention for the Solution

of the Problem of the Chamizal, Art. 2, Aug. 29, 1963, 15

U. S. T. 23, T. I. A. S. No. 5515 (Chamizal Convention).

They would jointly bear the costs of doing so; and they

would charge a bilateral commission with “relocation of

the river channel . . . and the maintenance, preservation

and improvement of the new channel.” Art. 9, id., at 26.

When final construction of the new channel concluded,

President Johnson visited the site to celebrate the “chan­

nels between men, bridges between cultures” created

by the countries’ joint effort. Kramer, A Border Crosses,

The New Yorker, Sept. 20, 2014, online at http://www.

newyorker.com / news / news - desk / moving-mexican - border

(all internet materials as last visited June 23, 2017); see

also Appendix, fig. 2, infra (photograph of President and

Mrs. Johnson touring the culvert). That “channel” is the

culvert now before us.

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, fig. 1, infra (typical cross-section

4 HERNANDEZ v. MESA

BREYER, J., dissenting

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 Be­

tween 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 maintain

the “limitrophe” areas. Treaty To Resolve Pending

Boundary Differences and Maintain the Rio Grande and

Colorado River as the International Boundary, Art. IV,

Nov. 23, 1970, 23 U. S. T. 390, T. I. A. S. No. 7313 (Rio

Grande and Colorado River Treaty). Today an Interna­

tional Boundary and Water Commission, with representa­

tives of both nations, exercises its “jurisdiction” over “limi­

trophe parts of the Rio Grande.” Treaty of Feb. 3, 1944,

Art. 2, 59 Stat. 1224.

Fifth, international law recognizes special duties and

obligations that nations may have in respect to “limi­

trophe” 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 thou­

sands of miles long, but having “no width.” Reeves, Inter­

national Boundaries, 38 Am. J. Int’l L. 533, 544 (1944); see

also 1 Oppenheim’s International Law 661, n. 1 (R. Jen­

nings & 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

Cite as: 582 U. S. ____ (2017) 5

BREYER, J., dissenting

legal, political and economic regime of internal and inter­

national law,’ ” Andrassy, Les Relations Internationales de

Voisinage, in The Hague Academy of Int’l Law, 1951

Recuiel des Cours 131 (quoting Paul de Lapradelle, La

Frontiere 14 (1928)). Those areas are subject to a special

obligation of co-operation and good neighborliness, V.

Lowe, International Law 151 (2007) (describing the “re­

gime of voisinage,” which includes “jointly administered

infrastructure facilities . . . co-operation between neighbor­

ing 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 exercise of a sovereign’s

right of hot pursuit), as well as express duties of joint

administration that adjoining states undertake by treaty.

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 depend­

ing upon whether Hernández had been hit just before or

just after he crossed an imaginary mathematical border­

line 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 rele­

vant 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, Cross­

6 HERNANDEZ v. MESA

BREYER, J., dissenting

ing the Mexican-American Border, Every Day, The Atlan­

tic, 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

protections. I would consequently conclude that the

Fourth Amendment applies.

Finally, I note that neither court below reached the

question whether Bivens applies to this case, likely be­

cause 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 quali­

fied immunity questions. See Ziglar v. Abbasi, ante, p. 1;

but see ante, p. 1 (BREYER, J., dissenting).

For these reasons, with respect, I dissent.

Cite as: 582 U. S. ____ (2017)

7

BREYER

Appendix , J., dissenting

to opinion of BREYER, J.

APPENDIX

Figure 1. International Boundary and Water Commis­

sion, 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,

1968.