Hernandez v. Mesa Amicus

Also last week, I submitted a brief in Hernandez v. Mesa, the cross-border shooting case. In this case, my brief addresses the Fifth Circuit’s decision to apply the statutory presumption against extraterritoriality to a constitutional remedy for violations of the Fourth Amendment. A summary of the argument follows:

Because of the cross-border nature of the shooting at the center of this case, the lower court assumed that this case involved an extraterritorial application of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).  However, the extraterritorial aspects of this case should not be considered a “special factor” that counsels hesitation in the recognition of a remedy under Bivens.  The court below erred when it wrongfully relied on a statutory canon of construction when examining a constitutional remedy.  The concerns underlying the statutory presumption–concerns about conflicts with foreign law, U.S. sovereignty, and an assumption that Congress acts domestically, unless it clearly indicates otherwise–are not implicated here. If anything, when interpreting the Constitution, these concerns run in the opposite direction.

 And even if the presumption were applied, under this Court’s tests, the actions taken by Agent Mesa do not implicate extraterritoriality at all.  That is because when examining whether the presumption applies, courts look to the context of the statute to determine its “focus.”  Here, the context of the Constitution and the “focus” on preventing unreasonable actions by Government agents both suggest that extraterritoriality is not implicated.  Finally, the location of the shooting–in a culvert area largely controlled by the U.S. Border Patrol–is more akin to the control exercised by the United States in Guantanamo Bay, Cuba, than to those areas where the Constitution does not apply.  So application of the Bivens remedy in this context is not “extraterritorial” at all.

The complete brief can be found here.

Cert petition filed in Ninth Circuit cross-border shooting case

As promised, when the defendant sought to stay the Ninth Circuit’s mandate, a petition for certiorari has been filed in Swartz v. Rodriguez, which concerns a cross border shooting incident. I discussed the Ninth Circuit’s decision here.

The petition is available here.

The petition presents two questions: 1) the “antecedent question” of whether a Bivens remedy applies at all and 2) whether Officer Swartz was entitled to qualified immunity.

As to the first question, it argues that the context of a cross-border shooting is new for Bivens purposes and that four “special factors” counsel hesitation in extending Bivens to this new context. Those special factors are: 1) foreign relations; 2) separation of powers; 3) the extraterritorial application of the Constitution in this case; and 4) the failure of Congress to act to provide a remedy.

I do not find the question of the extraterritorial application to be particularly convincing, because at the time Officer Swartz fired his weapon at J.A., the minor child, he had no idea if J.A. was a Mexican citizen, an American citizen, or whether he had any substantial ties to the United States. All he knew was that J.A. was in Mexico. The Supreme Court just last term in Hernandez v. Mesa frowned upon the use of unknown facts, learned only in hindsight, to justify a grant of qualified immunity. While this petition does ask a slightly different question, I do not believe that this makes a difference here.

Had J.A. been an American citizen, I believe he clearly should be entitled to a Bivens remedy, despite his presence in Mexico. The Supreme Court has consistently held, for over a century, that the Fourth Amendment travels with American citizens abroad. Given this, it does not seem extreme to extend the Bivens remedy abroad to the same extent. For reasons I have articulated elsewhere, I believe that the Fourth Amendment follows the conduct of U.S. officials wherever they act. And in this case, the action taken by Swartz undeniably occurred on U.S. soil, even though the effects occurred in Mexico.

In last term’s Ziglar v. Abbasi, the Court appeared to restrict Bivens to the three contexts in which it had previously been held to apply - unlawful searches and seizures under the Fourth Amendment, due process claims under the Fifth Amendment, and claims under the Eighth Amendment. Here, this seems like a classic Bivens case - indeed, unlike the search in Bivens, the seizure here was much more extreme. Only if the Court takes an extremely cramped view of the context can it be said to be materially different from Bivens itself.

While Congress could make matters a great deal clearer by enacting a statutory remedy for these types of cross-border shootings, its inaction, especially in light of Bivens, does not deprive the Court of the ability to recognize this three-decades old remedy in this familiar context.