Amicus Curiae Brief — Jesus C. Hernández, et al., Petitioners v. Jesus Mesa, Jr.

Supreme Court briefAug 9, 2019

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No. 17-1678

IN THE

Supreme Court of the United States

___________

JESUS C. HERNÁNDEZ, ET AL.,

JESUS MESA, JR.,

___________

Petitioners,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

___________

BRIEF OF CONSTITUTIONAL

ACCOUNTABILITY CENTER AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

___________

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

DAVID H. GANS

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 501

Washington, DC 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

August 9, 2019

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

INTEREST OF AMICUS CURIAE ......................

INTRODUCTION AND SUMMARY OF

ARGUMENT ......................................................

ARGUMENT .........................................................

I. The Text and History of Article III Give the

Federal Courts Broad Judicial Power To

Protect Constitutional Rights and Prevent

Abuse of Power by the Government .............

II. The Framers Wrote Article III To Ensure

that Where There Is a Legal Right, There

Is a Legal Remedy for Infringement of that

Right .............................................................

III. The Framers of the Fourth Amendment

Viewed Civil Damage Suits Against

Government Officers as a Critical Bulwark

against Government Overreach...................

IV. Courts in the Founding Generation

Vindicated Fourth Amendment Rights by

Granting Damages Remedies for Unlawful

Seizures in Common Law Tort Suits...........

V. A Bivens Action is Appropriate To Enforce

the Fourth Amendment When There Are

No Alternative Remedies Available ............

CONCLUSION .....................................................

(i)

TABLE OF AUTHORITIES

Page(s)

Cases

The Appollon,

22 U.S. (9 Wheat.) 362 (1824) ................... 19, 20

Bates v. Clark,

95 U.S. 204 (1877) .....................................

Bauduc’s Syndic v. Nicholson,

2 La. 200 (1831) .........................................

Belknap v. Schild,

161 U.S. 10 (1896) .....................................

Bivens v. Six Unknown Named Agents of

Fed. Bureau of Narcotics,

403 U.S. 388 (1971) ............................... passim

Boumediene v. Bush,

553 U.S. 723 (2008) .................... 2, 6, 24, 26, 27

Boyd v. United States,

116 U.S. 616 (1886) .................................. 14, 16

Bush v. Lucas,

462 U.S. 367 (1983) .................................. 23, 25

Butz v. Economou,

438 U.S. 478 (1978) ...................................

Carpenter v. United States,

138 S. Ct. 2206 (2018) ...............................

Cohens v. Virginia,

19 U.S. (6 Wheat.) 264 (1821) .................... 5, 7

Corr. Servs. Corp. v. Malesko,

534 U.S. 61 (2001) ...................................... 5, 25

iii

TABLE OF AUTHORITIES – cont’d

Page(s)

Entick v. Carrington,

19 How. St. Tr. 1029 (C.P. 1765) ............. 14, 15

Fed. Deposit Ins. Corp. v. Meyer,

510 U.S. 471 (1994) ....................................

Franklin v. Gwinnett Cty. Pub. Sch.,

503 U.S. 60 (1992) ......................................

Hirsch v. Rand,

39 Cal. 315 (1870) ......................................

Huckle v. Money,

95 Eng. Rep. 768 (K.B. 1763) ................... 14, 16

Imlay v. Sands,

1 Cai. R. 566 (N.Y. Sup. Ct. 1804) ........... 21, 22

Jesner v. Arab Bank, PLC,

138 S. Ct. 1386 (2018) ................................

Kendall v. United States ex rel. Stokes,

37 U.S. (12 Pet.) 524 (1838) .......................

Leach v. Money,

19 How. St. Tr. 1001 (K.B. 1765) ...............

Little v. Barreme,

6 U.S. (2 Cranch) 170 (1804) .....................

Maley v. Shattuck,

7 U.S. (3 Cranch) 458 (1806) ....................

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ............... 3, 12, 13

Martin v. Hunter’s Lessee,

14 U.S. (1 Wheat.) 304 (1816) ...................

TABLE OF AUTHORITIES – cont’d

Page(s)

Maryland v. King,

569 U.S. 435 (2013) ...................................

Merriam v. Mitchell,

13 Me. 439 (1836) ......................................

Minneci v. Pollard,

565 U.S. 118 (2012) ...................................

Mitchell v. Harmony,

54 U.S. (13 How.) 115 (1852) ....................

Murray v. Schooner Charming Betsy,

6 U.S. (2 Cranch) 64 (1804) ......................

Phila. Co. v. Stimson,

223 U.S. 605 (1912) ....................................

Riley v. California,

134 S. Ct. 2473 (2014) ................................

Spokeo, Inc. v. Robins,

136 S. Ct. 1540 (2016) ................................

Stanford v. Texas,

379 U.S. 476 (1965) ....................................

United States v. Haymond,

139 S. Ct. 2369 (2019) ................................

United States v. Lee,

106 U.S. 196 (1882) .............................. 2, 22, 27

Utah v. Strieff,

136 S. Ct. 2056 (2016) ................................

TABLE OF AUTHORITIES – cont’d

Page(s)

Wilkes v. Wood,

19 How. St. Tr. 1153 (C.P. 1763) ....... 14, 15, 16

Wilkie v. Robbins,

551 U.S. 537 (2007) ........................... 24, 25, 26

Wilson v. McKenzie,

7 Hill 95 (N.Y. Sup. Ct. 1845) ....................

Wise v. Withers,

7 U.S. (3 Cranch) 331 (1806) .....................

Ziglar v. Abbasi,

137 S. Ct. 1843 (2017) .................... 4, 5, 24, 25

Constitutional Provisions

Del. Const. of 1792, art. I, § 9 ...................

Ky. Const. of 1792, art. XII, § 13 ..............

Mass. Const. of 1780, art. XI ....................

Md. Const. of 1776, art. XVII ....................

N.H. Const. of 1784, art. XIV ....................

Pa. Const. of 1790, art. IX, § 11 ................

Tenn. Const. of 1796, art. XI, § 17 ............

U.S. Const. art. III, § 2, cl. 1. ....................

Vt. Const. of 1786, ch. 1, para. 4 ...............

TABLE OF AUTHORITIES – cont’d

Page(s)

Books, Articles, and Other Authorities

Akhil Reed Amar, Fourth Amendment

First Principles, 107 Harv. L. Rev. 757

(1994) ......................................................... 4, 15

Akhil Reed Amar, Of Sovereignty and

Federalism, 96 Yale L.J. 1425 (1987) .......

1 Annals of Cong. (1789) (Joseph Gales ed.,

1834) ....................................................... 10, 19

5 Matthew Bacon, A New Abridgment of

Law (6th ed. 1793) ....................................

1 William Blackstone, Commentaries on

the Laws of England (1768) ......................

3 William Blackstone, Commentaries on

the Laws of England (1768) ................. 3, 11, 12

Nathan Chapman, Due Process Abroad,

112 Nw. U. L. Rev. 377 (2017) ................. 21, 27

3 The Complete Anti-Federalist (Herbert J.

Storing ed., 1981) ......................................

4 The Complete Anti-Federalist (Herbert J.

Storing ed., 1981) ......................................

5 The Complete Anti-Federalist (Herbert J.

Storing ed., 1981) ...................................... 4, 17

William J. Cuddihy, The Fourth

Amendment: Origins and Original

Meaning 602–1791 (2009) ......................... 16, 17

vii

TABLE OF AUTHORITIES – cont’d

Page(s)

2 The Debates in the Several State

Conventions on the Adoption of the

Federal Constitution (Jonathan Elliot ed.,

1836) .......................................................... 3, 9

3 The Debates in the Several State

Conventions on the Adoption of the

Federal Constitution (Jonathan Elliot ed.,

1836) ...................................................... passim

4 The Debates in the Several State

Conventions on the Adoption of the

Federal Constitution (Jonathan Elliot ed.,

1836) .......................................................... 8, 9

Essays by A Farmer (I), Baltimore Md.

Gazette, Feb. 15, 1788 .............................. 4, 17

Essays by Hampden, Mass. Centinel, Feb.

2, 1788 .......................................................

Essay of A Democratic Federalist, Penn.

Herald, Oct. 17, 1787 ................................

The Federalist No. 22 (Alexander

Hamilton) (Clinton Rossiter ed., 1961) ....

The Federalist No. 43 (James Madison)

(Clinton Rossiter ed., 1961) ......................

The Federalist No. 78 (Alexander

Hamilton) (Clinton Rossiter ed., 1961) ....

3, 6

The Federalist No. 80 (Alexander

Hamilton) (Clinton Rossiter ed., 1961) ....

viii

TABLE OF AUTHORITIES – cont’d

Page(s)

Robert L. Jones, Lessons from a Lost

Constitution: The Council of Revision, the

Bill of Rights, and the Role of the

Judiciary in Democratic Governance, 27

J.L. & Pol. 459 (2012)................................

Letter from Clarendon to W. Pym (Jan. 27,

1766) ..........................................................

Luther Martin, The Genuine Information,

Delivered to the Legislature of the

State of Maryland, Relative to the

Proceedings of the General Convention

(Nov. 29, 1787) .......................................... 8, 18

Hon. M. Blane Michael, Reading the

Fourth Amendment: Guidance from the

Mischief That Gave It Birth, 85 N.Y.U. L.

Rev. 905 (2010) ......................................... 15, 16

1 Papers of John Adams (R. Taylor ed.,

1977) ..........................................................

James E. Pfander & Jonathan L. Hunt,

Public Wrongs and Private Bills:

Indemnification and Government

Accountability in the Early Republic, 85

N.Y.U. L. Rev. 1862 (2010) .......................

1 The Records of the Federal Convention of

1787 (Max Farrand ed., 1911) ..................

2 The Records of the Federal Convention of

1787 (Max Farrand ed., 1911) ..................

7, 8

3 The Records of the Federal Convention of

1787 (Max Farrand ed., 1911) .................. 8, 18

TABLE OF AUTHORITIES – cont’d

Page(s)

2 Joseph Story, Commentaries on the

Constitution of the United States (3d ed.

1858) ..........................................................

3 Joseph Story, Commentaries on the

Constitution of the United States (1833) ..

George C. Thomas III, Stumbling Toward

History: The Framers’ Search and

Seizure World, 43 Tex. Tech. L. Rev. 199

(2010) .........................................................

Ann Woolhandler, Patterns of Official

Immunity and Accountability, 37 Case.

W. Res. L. Rev. 396 (1987) ........................

INTEREST OF AMICUS CURIAE1

Constitutional Accountability Center (CAC) is a

think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of

our Constitution’s text and history. CAC works in

our courts, through our government, and with legal

scholars to improve understanding of the Constitution and preserve the rights and freedoms it guarantees. CAC has a strong interest in ensuring meaningful access to the courts, in accordance with constitutional text, history, and values, and accordingly

has an interest in this case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

In a culvert on the border between the United

States and Mexico that U.S. officials patrol and effectively control, Jesus Mesa, a U.S. Border Patrol agent,

shot and killed Sergio Hernández, a 15-year-old Mexican boy, without justification or provocation. Hernández’s family, Petitioners here, seek to remedy this

abuse of government power and ensure compliance

with the limits the Fourth Amendment places on the

use of deadly force by federal law enforcement officers.

The Constitution’s promise of access to the courts ensures that they can do so. Indeed, suits such as this

one, cognizable under Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388

1 The parties have consented to the filing of this brief and their

letters of consent have been filed with the Clerk. Under Rule 37.6

of the Rules of this Court, amicus states that no counsel for a

party authored this brief in whole or in part, and no counsel or

party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amicus

or its counsel made a monetary contribution to its preparation or

submission.

(1971), are an indispensable mechanism for ensuring

that the government abides by fundamental Fourth

Amendment limitations on its authority.

Even at the border, “[n]o man in this country is so

high that he is above the law. No officer of the law may

set that law at defiance with impunity. All the officers

of the government, from the highest to the lowest, are

creatures of the law and are bound to obey it.” United

States v. Lee, 106 U.S. 196, 220 (1882). In our constitutional system, when officers abuse their powers,

they “are amenable for their injurious acts to the judicial tribunals of the country, at the suit of the oppressed.” 2 Joseph Story, Commentaries on the Constitution § 1676, at 508 (3d ed. 1858). Closing the

courthouse doors by foreclosing the only legal remedy

available to Hernández’s family would effectively give

the government the power “to switch the Constitution

on or off at will” at the border, Boumediene v. Bush,

553 U.S. 723, 765 (2008), thereby allowing the government to abuse its power unchecked.

Three precepts firmly embedded in the Constitution’s text and history strongly support permitting an

action under Bivens here. First, Article III created a

federal judiciary with broad power to enforce the Constitution’s limitations on the power of government in

cases and controversies that come before the courts.

When the Framers wrote our Founding charter more

than two centuries ago, they gave the judicial branch

of the government a critical role to play in our system

of separation of powers. Under our Constitution,

courts perform an essential checking function on the

political branches of government, ensuring fidelity to

the Constitution’s structure and guarantee of individual rights. The Framers understood that constitutional “[l]imitations . . . can be preserved in practice no

other way than through the medium of courts of

justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.

Without this, all the reservations of particular rights

or privileges would amount to nothing.” The Federalist No. 78, at 466 (Alexander Hamilton) (Clinton Rossiter ed., 1961). In the Framers’ constitutional design,

when other branches transgress the Constitution’s

limits, “the judicial department is a constitutional

check.” 2 The Debates in the Several State Conventions

on the Adoption of the Federal Constitution 196 (Jonathan Elliot ed., 1836) [hereinafter Elliot’s Debates].

Bivens enforces this structural constitutional principle.

Second, and related to the first, the Framers wrote

Article III to ensure that where there is a legal right,

there is also a legal remedy for violation of that right.

The Framers, who were steeped in English common

law traditions, understood that legal rights were

meaningless without the ability to go to court to obtain

a remedy when those rights were violated. As this

Court recognized in Marbury v. Madison, 5 U.S.

(1 Cranch) 137 (1803), “it is a general and indisputable

rule, that where there is a legal right, there is also a

legal remedy by suit or action at law, whenever that

right is invaded.” Id. at 163 (quoting 3 William Blackstone, Commentaries on the Laws of England *23

(1768)). Marbury affirmed that “[t]he very essence of

civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever

he receives an injury.” Id.

Third, these fundamental rule-of-law principles

have deep roots, not only in the text and history of Article III, but also in the history of the Fourth Amendment itself. “All the major English cases that inspired

the Fourth Amendment were civil jury actions” in

which juries awarded damages to prevent abuse of

power by British law enforcement officers. Akhil Reed

Amar, Fourth Amendment First Principles, 107 Harv.

L. Rev. 757, 775 (1994). The Framing generation that

added to the Constitution the Fourth Amendment’s

right to be secure from unreasonable searches and seizures viewed such suits for damages as a critical bulwark against abuse of power by the government. As

one Anti-Federalist essayist made the point, “no remedy has been yet found equal to the task of deter[r]ing

and curbing the insolence of office, but a jury—It has

become an invariable maxim of English juries, to give

ruinous damages whenever an officer has deviated

from the rigid letter of the law, or been guilty of any

unnecessary act of insolence or oppression . . . .” Essays by A Farmer (I), Baltimore Md. Gazette, Feb. 15,

1788, reprinted in 5 The Complete Anti-Federalist at

14 (Herbert J. Storing ed., 1981). “Because officers

who violated the Fourth Amendment were traditionally considered trespassers, individuals subject to unconstitutional searches or seizures historically enforced their rights through tort suits . . . .” Utah v.

Strieff, 136 S. Ct. 2056, 2060-61 (2016).

Consistent with each one of these deeply embedded principles, this Court in Bivens held that “damages may be obtained for injuries consequent upon a

violation of the Fourth Amendment by federal officials,” recognizing that “damages have been regarded

as the ordinary remedy for an invasion of personal interests in liberty.” Bivens, 403 U.S. at 395. Bivens

“vindicate[s] the Constitution by allowing some redress for injuries, and it provides instruction and guidance to federal law enforcement officers going forward.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1856-57

(2017). In this context, “[t]he settled law of Bivens” is

“a fixed principle in the law.” Id. at 1857. While this

Court has refused to extend Bivens to “any new context

or new category of defendants,” id. (quoting Corr.

Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001)), this

case, like Bivens itself, involves the historic remedy for

violation of the Fourth Amendment—the civil damages remedy affirmed by the Founding generation and

applied by the courts throughout our history. As history teaches, in this context, “it is damages or nothing.” Bivens, 403 U.S. at 410 (Harlan, J., concurring

in the judgment).

When a federal officer uses lethal force to kill an

innocent civilian without justification, the ultimate responsibility to enforce the Constitution and prevent

that abuse of governmental power lies with the courts.

The decision of the court below, which failed to heed

“the continued force” and “necessity, of Bivens in the

search-and-seizure context,” Ziglar, 137 S. Ct. at 1856,

should be reversed.

ARGUMENT

I. The Text and History of Article III Give the

Federal Courts Broad Judicial Power To

Protect Constitutional Rights and Prevent

Abuse of Power by the Government.

Article III of the Constitution broadly extends the

“judicial Power” to nine categories of cases and controversies, including “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United

States, and Treaties made, or which shall be made, under their Authority.” U.S. Const. art. III, § 2, cl. 1. Article III’s plain language empowers the “judicial department” to “decide all cases of every description,

arising under the constitution or laws of the United

States,” extending to the federal courts the obligation

“of deciding every judicial question which grows out of

the constitution and laws.” Cohens v. Virginia, 19 U.S.

(6 Wheat.) 264, 382, 384 (1821).

The Constitution’s sweeping grant of judicial

power to the newly created federal courts was a direct

response to the infirmities of the Articles of Confederation, which established a single branch of the federal

government and no independent court system. See

Akhil Reed Amar, Of Sovereignty and Federalism, 96

Yale L.J. 1425, 1443 (1987) (explaining that Confederation courts were “pitiful creatures of Congress, dependent on its pleasure for their place, tenure, salary,

and power”). Under the dysfunctional Articles of Confederation government, individuals could not go to

court to enforce federal legal protections, prompting

Alexander Hamilton to observe that “[l]aws are a dead

letter without courts to expound and define their true

meaning and operation.” The Federalist No. 22, supra,

at 150.

The Framers recognized that “there ought always

to be a constitutional method of giving efficacy to constitutional provisions. What, for instance, would avail

restrictions on the authority of the State legislatures,

without some constitutional mode of enforcing the observance of them? . . . No man of sense will believe

that such prohibitions would be scrupulously regarded

without some effectual power in the government to restrain or correct the infractions of them.” Id. No. 80,

at 475-76 (Alexander Hamilton). At the Philadelphia

Convention, the Framers extensively debated different

possible means to ensure compliance with the Constitution. As the Convention unfolded, the Framers

chose judicial review as a critical constitutional check

designed to “make Government accountable,” and “secure individual liberty.” Boumediene, 553 U.S. at 742.

While the judiciary would not have “the sword or the

purse,” The Federalist No. 78, supra, at 465 (Alexander

Hamilton), it would have broad powers to enforce

constitutional limitations and maintain the rule of law

in adjudicating cases and controversies.

The Virginia Plan proposed at the beginning of the

Convention authorized the “National Legislature” to

“negative all laws passed by the several States, contravening in the opinion of the National Legislature

the articles of Union” and provided for a “council of revision,” composed of members of the executive and judicial branches, “to examine every act of the National

Legislature before it shall operate, & every act of a particular Legislature before a Negative thereon shall be

final,” while granting to the courts the power to resolve

“questions which may involve the national peace and

harmony.” 1 The Records of the Federal Convention of

1787, at 21, 22 (Max Farrand ed., 1911) [hereinafter

Farrand’s Records]. Over the course of the Convention, both the Council of Revision and the congressional negative were rejected in favor of giving to the

judicial branch “the power of construing the constitution and laws of the Union in every case” and “preserving them from all violation from every quarter.” Cohens, 19 U.S. at 388.

The Framers rejected the Council of Revision because they believed that “the Judges ought to be able

to expound the law as it should come before them, free

from the bias in having participated in its formation.”

1 Farrand’s Records at 98. As Rufus King explained,

“the Judges will . . . expound[] . . . th[e] Laws when

they come before them; and they will no doubt stop the

operation of such as shall appear repugnant to the

[C]onstitution.” Id. at 109; see 2 id. at 76 (“[A]s to the

Constitutionality of laws, that point will come before

the Judges in their proper official character. In this

character they have a negative on the laws. Join them

with the Executive in the Revision and they will have

a double negative.”). As the debate reflects, “the single

most important reason the Council of Revision was rejected derived from the Convention’s commitment to

judicial review as an integral part of the constitutional

structure.” Robert L. Jones, Lessons from a Lost Constitution: The Council of Revision, the Bill of Rights,

and the Role of the Judiciary in Democratic Governance, 27 J.L. & Pol. 459, 507 (2012).

For similar reasons, the Framers rejected the congressional negative, preferring judicial review to congressional control. As Gouverneur Morris argued, “[a]

law that ought to be negatived will be set aside in the

Judiciary departmt. and if that security should fail;

may be repealed by a Nationl. law.” 2 Farrand’s Records at 28. Over the course of the Convention, the

Framers expanded the jurisdiction of the federal

courts to ensure that the Article III judiciary would be

“competent to the decision of any question arising out

of the Constitution,” 4 Elliot’s Debates at 156, and federal laws, giving the federal courts the power to decide

“all questions arising upon their construction, and in a

judicial manner to carry those laws into execution,”

Luther Martin, The Genuine Information, Delivered to

the Legislature of the State of Maryland, Relative to the

Proceedings of the General Convention (Nov. 29, 1787),

reprinted in 3 Farrand’s Records at 220.

In the ensuing debates over ratification of the Constitution, Federalists and Anti-Federalists alike

agreed that Article III gave the federal courts broad

powers to enforce the Constitution’s limits on the

power of government. In the state ratifying conventions, supporters of the Constitution repeatedly argued that the judicial branch would provide a critical

check on the political branches, guaranteeing individual rights and ensuring compliance with the Constitution’s structure.

In the Virginia ratifying convention, John Marshall argued, “[t]o what quarter will you look for protection from an infringement on the Constitution, if

you will not give the power to the judiciary? There is

no other body that can afford such a protection.” 3 Elliot’s Debates at 554. James Madison explained the

Constitution’s “new policy” of submitting constitutional questions to the “judiciary of the United States”:

“[t]hat causes of a federal nature will arise, will be obvious to every gentleman who will recollect that the

states are laid under restrictions, and that the rights

of the Union are secured by these restrictions.” Id. at

532. In the Connecticut ratifying convention, Oliver

Ellsworth explained that “[i]f the general legislature

should at any time overleap their limits, the judicial

department is a constitutional check. If the United

States go beyond their powers, if they make a law

which the Constitution does not authorize, it is void;

and the judicial power, the national judges, who, to secure their impartiality, are to be made independent,

will declare it to be void.” 2 id. at 196.

Anti-Federalists complained bitterly about Article

III’s broad sweep, insisting that “[t]he jurisdiction of

all cases arising under the Constitution and the laws

of the Union is of stupendous magnitude.” 3 id. at 565.

These arguments did not carry the day. Rejecting

Anti-Federalist claims that the breadth of judicial

power conferred in Article III was too sweeping, the

American people ratified the Constitution, giving the

newly created federal courts broad judicial power to

ensure that “the Constitution should be carried into effect, that the laws should be executed, justice equally

done to all the community, and treaties observed.” 4

id. at 160. The American people recognized that

“[t]hese ends can only be accomplished by a general,

paramount judiciary.” Id.

In 1789, when the Bill of Rights was added to the

Constitution, the Framers reaffirmed the role of the

federal courts in ensuring that the government respects constitutional limitations. Introducing the Bill

of Rights in Congress, James Madison observed that if

it were “incorporated into the constitution, independent tribunals of justice will consider themselves in a

peculiar manner the guardians of those rights; they

will be an impenetrable bulwark against every assumption of power in the legislative or executive; they

will be naturally lead to resist every encroachment

upon rights expressly stipulated for in the constitution

by the declaration of rights.” 1 Annals of Cong. 457

(1789) (Joseph Gales ed., 1834).

Just as Madison had recognized that “causes of a

federal nature” will arise under those provisions of the

Constitution in which “states are laid under restrictions,” 3 Elliot’s Debates at 532, Madison insisted

that the federal courts would have the obligation to enforce the rights laid out in the Bill of Rights in cases

that came before them. Judicial review was the key to

ensuring that the guarantees of the Bill of Rights were

not “paper barriers . . . too weak to be worthy of attention,” but rather real, enforceable limits on the power

of the federal government that would operate “against

the majority in favor of the minority.” 1 Annals of

Cong. 455, 454 (1789).

In creating an independent federal judiciary with

the power to enforce constitutional limitations and

maintain the rule of law, the Framers incorporated

long established common law principles that allowed

courts to vindicate individual rights and enforce the

rule of law, as the next Section discusses.

II. The Framers Wrote Article III To Ensure

that Where There Is a Legal Right, There Is

a Legal Remedy for Infringement of that

Right.

The Framers, recognizing that legal rights are

meaningless if individuals lack the ability to go to

court to obtain a remedy when a right is violated,

wrote Article III to ensure that such legal remedies exist. Steeped in the writings of Sir William Blackstone,

the Framers understood that rights and remedies

must go hand in hand if courts are to play their essential role in the Constitution’s system of separation of

powers: expounding the law and vindicating individual liberty. See The Federalist No. 43, supra, at 274

(James Madison) (“[A] right implies a remedy.”). As

Blackstone had written, it was a “general and indisputable rule, that where there is a legal right, there is

also a legal remedy, by suit or action at law, whenever

that right is invaded.” 3 William Blackstone, Commentaries on the Laws of England *23 (1768). “[I]n

vain would rights be declared, in vain directed to be

observed,” Blackstone explained, “if there were no

method of recovering and asserting those rights, when

wrongfully withheld or invaded. This is what we mean

properly, when we speak of the protection of the law.”

1 id. at 56; see Spokeo, Inc. v. Robins, 136 S. Ct. 1540,

1551 (2016) (Thomas, J., concurring) (“Historically,

common-law courts possessed broad power to adjudicate suits involving the alleged violation of private

rights, even when plaintiffs alleged only the violation

of those rights and nothing more.”).

These fundamental rule-of-law values were affirmed by a number of Founding-era state constitutions, which explicitly guaranteed redress for violations of legal rights. For example, the Massachusetts

Constitution of 1780 provided that “[e]very

subject . . . ought to find a certain remedy, by having

recourse to the laws, for all injuries or wrongs which

he may receive in his person, property, or character.

He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay, conformably to the laws.” Mass. Const. of 1780, art. XI. Other

state constitutions used similar formulations to protect the right of individuals to seek redress in the

courts for violations of their legal rights. See, e.g., Md.

Const. of 1776, art. XVII; N.H. Const. of 1784, art. XIV;

Vt. Const. of 1786, ch. 1, para. 4; Pa. Const. of 1790,

art. IX, § 11; Del. Const. of 1792, art. I, § 9; Ky. Const.

of 1792, art. XII, § 13; Tenn. Const. of 1796, art. XI,

§ 17.

In Marbury v. Madison, Chief Justice Marshall

recognized that these fundamental rule-of-law principles were secured by the U.S. Constitution. Chief Justice Marshall’s opinion in Marbury explained that, under Article III, the “province of the court is, solely, to

decide on the rights of individuals,” and he invoked

Blackstone’s discussion of common law principles that

ensure that “‘every right, when withheld, must have a

remedy, and every injury its proper redress.’” Marbury, 5 U.S. at 170, 163 (quoting 3 Blackstone, supra,

at *109). As Marbury observed, a broad understanding of the individual’s right to go to court to redress

violations of personal rights was necessary to ensure

“[t]he very essence of civil liberty”—“the right of every

individual to claim the protection of the laws, whenever he receives an injury”—and ensure our Constitution’s promise of a “government of laws, and not of

men.” Id. at 163.

“From the earliest years of the Republic, the Court

has recognized the power of the Judiciary to award appropriate remedies to redress injuries actionable in

federal court,” Franklin v. Gwinnett Cty. Pub. Sch.,

503 U.S. 60, 66 (1992), beginning with Marbury. In

Marbury, it did not matter that federal law did not

grant an express right of action to Marbury, or even

that “the mandamus, now moved for, is not for the performance of an act expressly enjoined by statute.” 5

U.S. at 172. Since the refusal to deliver the commission violated his individual right to the office, Marbury

had “a right to resort to the laws of his country for a

remedy.” Id. at 166; id. at 165 (explaining that such

suits are “examinable in a court of justice”). For more

than two centuries, the “historic judicial authority to

award appropriate relief . . . has been thought necessary to provide an important safeguard against abuses

of legislative and executive power . . . as well as to ensure an independent Judiciary.” Franklin, 503 U.S. at

74; see Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.)

304, 350 (1816) (rejecting a construction of Article III

that “would, in many cases,” result in “rights without

corresponding remedies”); Kendall v. United States

ex rel. Stokes, 37 U.S. (12 Pet.) 524, 624 (1838) (explaining that it would be a “monstrous absurdity in a

well organized government, that there should be no

remedy, although a clear and undeniable right should

be shown to exist”).

The Framers’ linkage of rights and remedies is directly reflected not only in Article III but in the text

and history of the Fourth Amendment as well. As the

next Section shows, the Framers of the Fourth Amendment wrote into the Constitution a broad guarantee of

freedom from unreasonable searches and seizures

against the backdrop of landmark English cases in

which juries awarded damages in civil suits to check

abuse of authority by the Crown.

III. The Framers of the Fourth Amendment

Viewed Civil Damage Suits Against

Government Officers as a Critical Bulwark

against Government Overreach.

The Founding generation “crafted the Fourth

Amendment as a ‘response to the reviled general warrants and writs of assistance of the colonial era, which

allowed British officers to rummage through homes in

an unrestrained search for evidence of criminal activity.’” Carpenter v. United States, 138 S. Ct. 2206, 2213

(2018) (quoting Riley v. California, 134 S. Ct. 2473,

2494 (2014) (quotation marks omitted)). The Framers

viewed these indiscriminate searches as “‘the worst instrument of arbitrary power’ . . . because they placed

‘the liberty of every man in the hands of every petty

officer.’” Stanford v. Texas, 379 U.S. 476, 481 (1965)

(quoting Boyd v. United States, 116 U.S. 616, 625

(1886)). As the history of the Fourth Amendment

shows, the Framers viewed civil damage actions—the

very kind of suits cognizable under Bivens—as a critical check on abuse of power by the government.

The Framers’ understanding of the guarantee

against unreasonable searches and seizures was

shaped by a host of foundational English cases decided

in the 1760s, see Wilkes v. Wood, 19 How. St. Tr. 1153

(C.P. 1763); Huckle v. Money, 95 Eng. Rep. 768 (K.B.

1763); Entick v. Carrington, 19 How. St. Tr. 1029 (C.P.

1765); Leach v. Money, 19 How. St. Tr. 1001 (K.B.

1765), in which juries awarded tort damages to individuals whose homes were invaded or whose papers

were searched by the King’s officers. These cases, all

growing out of warrants issued in response to the publication of the North Briton No. 45, a pamphlet critical

of the King, put center stage the role of the jury in

awarding damages and limiting abuse of power by the

government.

As an attorney argued in Wilkes, the most prominent of these cases, “the constitution of our country

had been so fatally wounded, that it called aloud for

the redress of a jury of Englishmen.” Wilkes, 19 How.

St. Tr. at 1154. The jury, he argued, should perform

its role of “instructing those great officers in their duty,

and that they (the jury) would now erect a great sea

mark, by which our state pilots might avoid, for the

future, those rocks upon which they now lay shipwrecked.” Id. at 1155. The jury’s award of £4,000 in

damages, “roughly equivalent to £500,000 today,” vindicated these arguments. See Hon. M. Blane Michael,

Reading the Fourth Amendment: Guidance from the

Mischief That Gave It Birth, 85 N.Y.U. L. Rev. 905, 910

(2010).

Wilkes and other cases like it demonstrated to the

Framers that civil damage actions were an essential

method of protecting individual liberty and limiting

abuse of power, preventing “the secret cabinets and

bureaus of every subject in this kingdom [from]

be[ing] thrown open to the search and inspection of a

messenger, whenever the secretary of state shall think

fit.” Entick, 19 How. St. Tr. at 1063. Time and again,

the British courts rejected the use of general warrants

to immunize officers from liability as “totally subversive of the liberty of the subject,” Wilkes, 19 How. St.

Tr. at 1167, instead upholding damage awards that, in

some cases, were quite substantial. Amar, Fourth

Amendment First Principles, supra, at 797 (“As civil

plaintiffs, John Wilkes and company . . . had recovered

a King’s ransom from civil juries to teach arrogant officialdom a lesson and to deter future abuse.”); George

C. Thomas III, Stumbling Toward History: The Framers’ Search and Seizure World, 43 Tex. Tech. L. Rev.

199, 215 (2010) (“[T]ort law brought the king, his ministers, and his secretary of state to their knees.”).

Indeed, in Wilkes, the court specifically affirmed the

power of the jury to award damages “not only as a satisfaction to the injured person, but likewise as a punishment to the guilty, to deter from any such proceeding for the future.” 19 How. St. Tr. at 1167; see Huckle,

95 Eng. Rep. at 769 (upholding jury’s award of “exemplary damages” in light of the “great point of law

touching the liberty of the subject” and the Crown’s

“exercising arbitrary power, violating Magna Charta,

and attempting to destroy the liberty of the kingdom”).

Wilkes, as well as other cases, were widely covered

in American newspapers, and “the reaction of the colonial press to that controversy was intense, prolonged,

and overwhelmingly sympathetic to Wilkes.” William

J. Cuddihy, The Fourth Amendment: Origins and

Original Meaning 602–1791, at 538 (2009); see id. at

539 (discussing the scope of the coverage in the colonial press); id. at 538 (noting that a “revulsion to general warrants ensued in the colonies” following the

Wilkes controversy). As this Court observed in Boyd,

“every American statesman, during our revolutionary

period and formative period as a nation, was undoubtedly familiar” with these “landmarks of English liberty,” Boyd, 116 U.S. at 626, which had a powerful effect on the framing of the Fourth Amendment, see Michael, supra, at 906 (“The early mischief—the British

Crown’s unbridled power of search—is at the center of

the rich history that led to the adoption of the Fourth

Amendment.”).

The failure to include a Bill of Rights in the original Constitution launched an avalanche of criticism,

as many insisted that the Constitution was deficient

without guarantees for substantive fundamental

rights essential to liberty, including rights of personal

security. Anti-Federalists lamented that, without a

Bill of Rights, “any man may be seized, any property

may be taken, in the most arbitrary manner, without

any evidence or reason. Every thing the most sacred

may be searched and ransacked by the strong hand of

power.” 3 Elliot’s Debates at 588; see Maryland v.

King, 569 U.S. 435, 467 (2013) (Scalia, J., dissenting).

They feared that “[t]he officers of Congress may come

on you now, fortified with all the terrors of paramount

federal authority.” 3 Elliot’s Debates at 448. Those

who fought to add the Fourth Amendment to the Constitution emphasized, in line with Wilkes, the role of

the courts in protecting the right to be secure and

checking governmental abuse of the power to search

and seize. Civil damage actions, they understood,

were critical to prevent abuse of power by the government. “To Americans, one lesson of the Wilkes Cases

was that juries could avert outrageous searches by

subjecting those responsible to exemplary, financial

damage.” Cuddihy, supra, at 760.

Those urging new search and seizure protections

consistently emphasized the role of, and the need for,

civil damage remedies to curb the unbridled discretion

of federal officers. For example, a Maryland Anti-Federalist essayist, writing under the name of “A Farmer,”

insisted on the constitutional checking function performed by civil damages remedies, referring to the role

juries had played in the Wilkes case. “[N]o remedy has

been yet found equal to the task of deter[r]ing and

curbing the insolence of office, but a jury—It has become an invariable maxim of English juries, to give ruinous damages whenever an officer has deviated from

the rigid letter of the law, or been guilty of an unnecessary act of insolence or oppression . . . .” Essays

by A Farmer (I), Baltimore Md. Gazette, Feb. 15, 1788,

reprinted in 5 The Complete Anti-Federalist, supra, at

14. Likewise, Marylander Luther Martin emphasized

that “jury trials”—which he called “the surest barrier

against arbitrary power, and the palladium of liberty”—were “most essential for our liberty . . . in every

case . . . between governments and its officers on the

one part, and the subject or citizen on the other.” Martin, supra, in 3 Farrand’s Records at 221-22 (emphasis

omitted). To the Founding generation, “the right to

trial by jury” was “‘the heart and lungs, the mainspring and the center wheel’ of our liberties, without

which ‘the body must die; the watch must run down;

the government must become arbitrary.’” United

States v. Haymond, 139 S. Ct. 2369, 2375 (2019) (opinion of Gorsuch, J.) (quoting Letter from Clarendon to

W. Pym (Jan. 27, 1766), in 1 Papers of John Adams

169 (R. Taylor ed., 1977)).

Elsewhere, too, Anti-Federalists seeking to add

search and seizure protections to the Constitution

highlighted the need for civil damage remedies to prevent abuse of government power, reflecting the lessons

of Wilkes. During debates in Pennsylvania in 1787,

one Anti-Federalist writer argued that, if “a constable,

having a warrant to search for stolen goods, pulled

down the clothes of a bed in which there was a woman,

and searched under her shift . . . a trial by jury would

be our safest resource, heavy damages would at once

punish the offender, and deter others from committing

the same . . . .” Essay of A Democratic Federalist, Penn.

Herald, Oct. 17, 1787, reprinted in 3 The Complete

Anti-Federalist, supra, at 61. Likewise, in Massachusetts, the essayist Hampden insisted that “without [a

jury], in civil actions, no relief can be had against the

High Officers of State, for abuse of private citizens . . . .” Essays by Hampden, Mass. Centinel, Feb.

2, 1788, reprinted in 4 The Complete Anti-Federalist,

supra, at 200.

These arguments carried the day, and the Fourth

Amendment was added to the Constitution,

establishing broad protections “indispensable to the

full enjoyment of the rights of personal security, personal liberty, and private property.” 3 Joseph Story,

Commentaries on the Constitution of the United States

§ 1895, at 748 (1833). As the history of the Fourth

Amendment shows, its Framers expected the courts to

be an “impenetrable bulwark against every assumption of power in the legislative or executive” and to “resist every encroachment upon [Fourth Amendment]

rights,” 1 Annals of Cong. 457 (1789), using the timehonored tool of civil damages to prevent individuals

from being subject to “all the terrors of paramount federal authority,” 3 Elliot’s Debates at 448.

IV. Courts in the Founding Generation

Vindicated Fourth Amendment Rights by

Granting Damages Remedies for Unlawful

Seizures in Common Law Tort Suits.

Consistent with this history, Americans courts in

the early Republic vindicated Fourth Amendment values through the analogous common law tort actions of

trespass, malicious prosecution, and others. See Ann

Woolhandler, Patterns of Official Immunity and Accountability, 37 Case. W. Res. L. Rev. 396, 399 (1987)

(“The predominant method of suing officers in the

early nineteenth century was an allegation of common

law harm, particularly a physical trespass. The issue

of whether the action was authorized by existing statutory or constitutional law was introduced by way of a

defense and reply when the officer pleaded justification.”). Even in cases that implicated foreign policy

concerns, it was the responsibility of the courts to “only

look to the questions, whether the laws have been violated; and if they were, justice demands, that the injured party should receive a suitable redress.” The Appollon, 22 U.S. (9 Wheat.) 362, 367 (1824). Congress

might choose to indemnify the officer after the fact, but

it was the responsibility of the courts in the first instance to uphold the rule of law. See James E. Pfander

& Jonathan L. Hunt, Public Wrongs and Private Bills:

Indemnification and Government Accountability in the

Early Republic, 85 N.Y.U. L. Rev. 1862, 1868 (2010);

Pet. Br. at 10-12.

For example, in Little v. Barreme, 6 U.S. (2

Cranch) 170 (1804), a U.S. naval officer seized a Danish vessel on the high seas, claiming authority to do so

based on the Nonintercourse Act and presidential instructions commanding such seizures. Id. at 170-71.

Chief Justice John Marshall’s opinion for the Court

held that the federal officer “must be answerable in

damages,” concluding that the orders Little received

could not “legalize an act which without those instructions would have been a plain trespass.” Id. at 179.

Insisting that those injured by abuse of power had a

right to go to court, Chief Justice Marshall refused to

draw a line “between acts of civil and those of military

officers” or “between proceedings within the body of

the country and those on the high seas.” Id.

As Little and a host of other cases made clear, even

on the high seas, no officer was above the law. See

Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch)

64, 124 (1804) (describing naval captain who unlawfully seizes a foreign vessel as “a victim of any mistake

he commits”); Maley v. Shattuck, 7 U.S. (3 Cranch)

458, 490 (1806) (upholding damage award against naval officer in seizure of a vessel where “circumstances

of suspicion . . . were not sufficiently strong to justify

the seizure which was made”); The Appollon, 22 U.S.

at 373 (“The party who seizes seizes at his peril; if condemnation follows, he is justified; if an acquittal, then

he must refund in damages for the marine tort . . . .”).

As these cases reflect, “suits against officers ensured

due process of law for anyone threatened by unlawful

deprivations, regardless of where the deprivation occurred.” Nathan Chapman, Due Process Abroad, 112

Nw. U. L. Rev. 377, 433 (2017).

This Court’s cases permitted individuals to sue to

redress a broad range of abuse of power by federal officials. In Wise v. Withers, 7 U.S. (3 Cranch) 331

(1806), this Court permitted an action for trespass vi et

armis (a trespass action for force resulting in harm) to

go forward against a federal militia officer who was

seeking to collect fines from Wise, a U.S. justice of the

peace. Id. at 332. Withers had entered Wise’s home

and seized his property to satisfy a fine, which had

been imposed by a court-martial for failure to serve.

Id. Finding that a justice of the peace was exempt from

militia duty and the court-martial lacked jurisdiction

over him, this Court held that Wise was entitled to recover, finding that “[t]he court and the officer are all

trespassers.” Id. at 337.

In Mitchell v. Harmony, 54 U.S. (13 How.) 115

(1852), this Court affirmed a jury verdict against a

U.S. army officer who unlawfully seized the plaintiff’s

property pursuant to a superior’s orders. Id. at 116.

Declaring that “mere suspicions of an illegal intention

will not authorize a military officer to seize and detain

the property of an American citizen,” id. at 133, this

Court held that “the order given was an order to do an

illegal act; to commit a trespass upon the property of

another; and can afford no justification to the person

by whom it was executed,” id. at 137.

State courts, too, permitted tort actions to go forward against federal officers who abused their authority to search and seize in a number of different contexts. In Imlay v. Sands, 1 Cai. R. 566 (N.Y. Sup. Ct.

1804), the New York Supreme Court granted judgment to the plaintiff in a trespass action arising out of

the seizure of goods by a federal customs collector. Id.

at 573. Observing that the “officer seizes at his peril”

and that “there was no real ground for the seizure,” the

court insisted that its duty was to “pronounce the law

as we find it, and leave cases of hardship, where any

exist, to legislative provision.” Id.; see Wilson v.

McKenzie, 7 Hill 95, 95 (N.Y. Sup. Ct. 1845) (permitting trespass action against a naval officer for assaulting and imprisoning one of his subordinates).

In Merriam v. Mitchell, 13 Me. 439 (1836), the

Maine Supreme Court upheld a damage award against

a federal postal inspector for malicious prosecution.

Finding no basis for bringing “a prosecution against an

innocent and unoffending man, who had given no color

for suspicion against him,” the court concluded that

“[r]eparation is demanded in such a case, by the plainest dictates of common justice.” Id. at 457. The court

upheld the jury’s finding of malice, concluding that it

had “a right to do so, from the want of probable cause.”

Id. at 458; see Bauduc’s Syndic v. Nicholson, 2 La. 200,

203 (1831) (holding that a federal court marshal “is not

perhaps amenable to the State Court, in his official capacity, as marshal,” but “if in that capacity, he wrongs

a citizen of the State, he is individually answerable,

and in her courts”); Hirsch v. Rand, 39 Cal. 315, 318

(1870) (reinstating trespass suit where a U.S. marshal

“arrested and imprisoned the plaintiff without probable cause, or lawful authority to do so”).

These Founding-era principles, which make plain

that “[n]o officer of the law may set that law at defiance with impunity,” Lee, 106 U.S. at 220, are deeply

rooted in this Court’s case law, see, e.g., Bates v. Clark,

95 U.S. 204, 209 (1877); Belknap v. Schild, 161 U.S.

10, 19 (1896); Phila. Co. v. Stimson, 223 U.S. 605, 61920 (1912); Butz v. Economou, 438 U.S. 478, 489-90

(1978); see also Pet. Br. at 13-17, and form the

backdrop for this Court’s decision in Bivens, as the

next Section discusses.

V. A Bivens Action is Appropriate To Enforce

the Fourth Amendment When There Are No

Alternative Remedies Available.

Consistent with the text and history of both Article

III and the Fourth Amendment, and with the rich history of common law actions for unlawful seizures by

federal officers, this Court in Bivens held that “damages may be obtained for injuries consequent upon a

violation of the Fourth Amendment by federal officials.” Bivens, 403 U.S. at 395. As this Court explained, “damages have been regarded as an ordinary

remedy for an invasion of personal interests in liberty.” Id.; Bush v. Lucas, 462 U.S. 367, 378 (1983) (explaining that, under Bivens, in the Fourth Amendment

context, “[t]he federal courts’ statutory jurisdiction to

decide federal questions confers adequate power to

award damages to the victim of a constitutional violation”). In reaching that result, the Justices embraced

Founding-era principles recognizing that “the judiciary has a particular responsibility to assure the vindication of constitutional interests such as those embraced by the Fourth Amendment,” Bivens, 403 U.S.

at 407 (Harlan, J., concurring in the judgment), and

that “‘rights’ and ‘remedies’” are “link[ed]” in “a 1:1 correlation,” id. at 400 n.3.

Under Bivens, when federal law supplies a basis

for jurisdiction and when “some form of damages is the

only possible remedy,” id. at 409, “a traditional judicial

remedy such as damages is appropriate to the vindication of the personal interests protected by the Fourth

Amendment,” id. at 399. The government in Bivens

argued that a plaintiff seeking damages for an unconstitutional search and seizure may only bring a state

common law tort action, relying on the historical

pedigree of such suits. But Bivens rejected that approach, recognizing that “[t]he interests protected by

state laws regulating trespass and the invasion of privacy, and those protected by the Fourth Amendment’s

guarantee against unreasonable search and seizures,

may be inconsistent or even hostile.” Id. at 394 (majority opinion). Given “the limitations on state remedies for violation of common-law rights,” Bivens permitted a federal claim for violation of the Fourth

Amendment’s federal constitutional guarantee against

unreasonable searches and seizures, insisting that

these kinds of constitutional “injuries be compensable

according to uniform rules of federal law.” Id. at 409

(Harlan, J., concurring in the judgment).

Bivens reflects the Framers’ view that some kind

of civil remedy was necessary to prevent individuals

from being subjected to “all the terrors of paramount

federal authority.” 3 Elliot’s Debates at 448. Otherwise, federal officers would have the untrammeled authority to search and seize, producing the unchecked

concentration of power the Framers feared. See

Boumediene, 553 U.S. at 742 (noting the Framers’

“view that pendular swings to and away from individual liberty were endemic to undivided, uncontrolled

power”). While the Court has been reluctant to apply

Bivens outside this context, its cases have reaffirmed

Bivens’ “continued force” and “necessity” in the

“search-and-seizure context in which it arose.” Ziglar,

137 S. Ct. at 1856.

Reflecting these rule-of-law moorings, this Court’s

cases have also made clear that Bivens “is not an automatic entitlement no matter what other means there

may be to vindicate a protected interest,” Wilkie v.

Robbins, 551 U.S. 537, 550 (2007), and, in a number of

cases, this Court has declined to extend Bivens, finding

that other remedies were available. See Ziglar, 137 S.

Ct. at 1862 (no Bivens claim to “challenge large-scale

policy decisions” because “detainees may seek injunctive relief”); Minneci v. Pollard, 565 U.S. 118, 126-31

(2012) (no Bivens action available because of possibility of state tort suit); Corr. Servs. Corp., 534 U.S. at 72

(no Bivens action where “alternative remedies are at

least as great, and in many respects greater, than anything that could be had under Bivens”); Fed. Deposit

Ins. Corp. v. Meyer, 510 U.S. 471, 485 (1994) (no Bivens

action against federal agency because Bivens permits

a suit against a federal officer “to deter the officer”).

In Wilkie, this Court synthesized its precedents

applying Bivens, setting out two basic considerations.

First, “there is the question whether any alternative,

existing process for protecting the interest amounts to

a convincing reason for the Judicial Branch to refrain

from providing a new and freestanding remedy in

damages.” Wilkie, 551 U.S. at 550 (citing Bush, 462

U.S. at 378). Second, “the federal courts must make

the kind of remedial determination that is appropriate

for a common-law tribunal, paying particular heed,

however, to any special factors counselling hesitation

before authorizing a new kind of federal litigation.” Id.

(quoting Bush, 462 U.S. at 378); see Minneci, 565 U.S.

at 123 (explaining that these dual inquiries “seek to

reflect and to reconcile the Court’s reasoning set forth

in earlier cases”). Both considerations point decisively

toward permitting Hernández to sue in this case to redress the killing of his 15-year-old son.

First, here, as in Bivens, “it is damages or nothing.” Bivens, 403 U.S. at 410. This is the archetypal

case of “law enforcement overreach, which due to [its]

very nature [is] difficult to address except by way of

damages actions after the fact.” Ziglar, 137 S. Ct. at

1862. A Bivens suit here is the only means to ensure

that federal officers respect the constitutional limits

on their authority. Mesa cannot be sued in Texas state

courts, because Congress has preempted that tort suit,

leaving plaintiffs no recourse but this Bivens action.

See Pet. Br. at 19-20, 34-37. If this Court closes the

courthouse door in this case, the government will have

the unchecked power to “switch the Constitution on or

off at will” at the border, eliminating “an indispensable

mechanism for monitoring the separation of powers.”

Boumediene, 553 U.S. at 765.

Second, “weighing reasons for and against the creation of a new cause of action, the way common law

judges have always done,” also makes clear that a

Bivens action is appropriate here. Wilkie, 551 U.S. at

554. As history shows, civil damage actions against

government officers who unlawfully search and seize

persons, such as this one, is the quintessential method

used “to implement [the Fourth Amendment’s] guarantee.” Id. at 550. Permitting this suit to go forward

under Bivens would not be fashioning a newly minted

cause of action, cf. Jesner v. Arab Bank, PLC, 138 S.

Ct. 1386, 1414 (2018) (Gorsuch, J., concurring in part

and concurring in the judgment), but simply recognizing what the text and history of the Fourth Amendment reflect: its Framers understood that civil damage

suits were an appropriate method of redressing violations of the Fourth Amendment by federal officers. At

the Founding, trespass actions encompassed the unlawful use of force. See 5 Matthew Bacon, A New

Abridgment of Law 157 (6th ed. 1793) (“[T]he Person

guilty of a Trespass accompanied with actual Force,

which has been injurious to one or a few Persons, is

liable to an Action of Trespass.”). The Framers viewed

courts as the frontline defense against “all the terrors

of paramount federal authority,” 3 Elliot’s Debates at

448, including violent, deadly seizures such as occurred in this case.

The fact that the arbitrary and unreasonable use

of deadly force in this case occurred at the U.S.-Mexico

border and resulted in the death of a 15-year-old Mexican boy does not lessen this Court’s duty to enforce

the Constitution. “Because the Constitution’s separation-of-powers structure . . . protects persons as well as

citizens, foreign nationals who have the privilege of litigating in our courts can seek to enforce separation-ofpowers principles.” Boumediene, 553 U.S. at 743. As

Founding-era cases make clear, see supra at 19-21,

civil suits were recognized as appropriate to enforce

limits on government authority “for anyone threatened by unlawful deprivations, regardless of where the

deprivation occurred,” Chapman, supra, at 433. Thus,

even at the border, when federal officers use lethal

force in the “most arbitrary manner, without any evidence or reason,” 3 Elliot’s Debates at 588, courts have

an obligation to hold them to account, ensuring that

“[n]o officer of the law may set that law at defiance

with impunity,” Lee, 106 U.S. at 220.

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

DAVID H. GANS

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 501

Washington, DC 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

August 9, 2019

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.