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.