Thoughts on the Briefing to Date in Hernandez v. Mesa—The Cross-border Shooting Case

Hernandez v. Mesa has the potential to generate a very important decision by the Supreme Court this term, impacting foreign intelligence surveillance, drone strikes, and many other U.S. government activities abroad.

The case is a constitutional tort suit against a U.S. border control officer who, while standing on the U.S. side, shot and killed an unarmed Mexican teenager while he was in Mexico. It was decided on a limited record, so some facts are still uncertain. The allegations in the plaintiffs’ complaint are troubling. But after extensive investigation, U.S. criminal justice authorities declined to bring charges against the officer. The DOJ press release states that this decision "took into account evidence indicating that the agent’s actions constituted a reasonable use of force or would constitute an act of self defense in response to the threat created by a group of smugglers"—not the teenager Hernandez—"hurling rocks at the agent." No matter what the precise facts turn out to be, it seems certain that a terrible tragedy occurred.

The cert grant brings up for a review of decision of the Fifth Circuit en banc which dismissed the suit by the teenager's parents and his estate, holding that the Fourth Amendment claim was barred on the merits by the Supreme Court's 1992 decision in United States v. Verdugo-Urquidez, and that the Fifth Amendment substantive due process claim was barred by qualified immunity. Verdugo had held that the Fourth Amendment did not apply extraterritorially to a search in Mexico by U.S. and Mexican law enforcement of the home of a Mexican national detained in the U.S. on criminal charges. Verdugo described an earlier precedent, Johnson v. Eisentrager (1950), as having been "emphatic" in its "rejection of extraterritorial application of the Fifth Amendment" to benefit German nationals detained by the U.S. military in post-World War II Germany. And the en banc Fifth Circuit concluded that Boumediene v. Bush (2008), concerning the Habeas Suspension Clause and Guantanamo detainees, had not changed the law under the Fourth and Fifth Amendments. It was not clearly established when the shooting occurred that "the general prohibition on excessive force applies where the person injured by a U.S. official standing on U.S. soil is an alien who had no significant voluntary connection to, and was not in, the United States when the incident occurred."

Implications

This case could be significant because the Fourth Amendment governs all manner of searches and seizure by U.S. officials, everything from electronic surveillance to physical searches of persons, buildings, computers and other devices, to thermal imaging to shootings. The substantive due process component of the Fifth Amendment governs government action that could be characterized as arbitrary, excessive, or conscience shocking.

If these amendments are held to apply outside U.S. borders to protect noncitizens, a huge array of intelligence, military, immigration, customs, and law enforcement activity could be impacted. To take two examples that are salient for Lawfare readers: extraterritorial foreign intelligence surveillance and drone strikes, both of which have proceeded to date under the executive branch's assumption that noncitizens outside the United States have no relevant constitutional rights in those contexts.

Likely Outcome

It seems probable that a coalition of liberal-leaning justices voted for cert, hoping to reverse the Fifth Circuit. They are likely to be joined by Justice Kennedy to form a 5-3 majority holding that the Fourth Amendment applies extraterritorially on behalf of noncitizens in the factual circumstances presented here.

Kennedy, a consistent vote for judicial supremeacy, has made it clear in Boumediene and in his concurrence in Verdugo that he thinks the test for application of the Constitution abroad is a totality-of-the-circumstances analysis, which takes some account of national borders and citizenship but does not give them decisive weight, and grants judges maximum flexibility to extend constitutional provisions where they see fit.

Any realistic possibility that Kennedy and the liberal justices would rule for the executive in Hernandez was probably dashed by the election of Trump. Kennedy voted against the George W. Bush administration in national security cases after details about prisoner abuse and other misconduct became public. Boumediene, which he authored, strongly endorsed judicial checks on executive abuse and overreaching. Those concerns will likely be paramount again, especially in the border context—Trump's campaign rhetoric can easily be read to suggest he will endorse very aggressive action against persons of Mexican descent at and around the border.

At the cert stage, the United States filed a brief in opposition, arguing that even without allowing lawsuits like this to go forward, there were adequate checks to prevent abuse by U.S. officials affecting persons just across the border in Mexico: the possibility of U.S. criminal charges, the jurisdiction of Mexican courts over torts or crimes, and the possibility that the U.S. would extradite a U.S. official to Mexico to face charges. The effectiveness of these avenues of relief turns almost entirely on good faith cooperation by the U.S. government, and it seems unlikely that Kennedy and the four liberal justices will assume that such would be forthcoming from a Trump administration. The Hernandez parties' opening brief, filed after the election, prominently calls these fears to the fore, stating on page one that a ruling in their favor is needed to "avoid[ ] creating a legal no-man's land in which federal agents can kill innocent civilians with impunity."

The Constitution Abroad

The Hernandez parties have filed their opening merits brief (Lawfare's Steve Vladeck is one of the lawyers on the brief), and a slew of amici have just filed in support of them. In what follows I offer some observations on the briefing to date and the larger legal issues raised (or ignored) by the briefs for the plaintiffs and their supporters.

The core claim made by the Hernandez brief and supporting amici is that the functional, flexible, open-ended test for application of the Habeas Suspension Clause outside U.S. borders that was announced in Boumediene should govern all questions of the extraterritoriality of U.S. constitutional rights, overruling a bright-line sovereignty and citizenship test used in Verdugo (and for two centuries prior to that).

The briefing in favor of extending the Constitution to benefit noncitizens outside U.S. borders is more measured and historically accurate that it was in Boumediene, Rasul, and earlier cases. In earlier litigation, parties opposing the government and many amici supporting them made inaccurate claims about history and Supreme Court precedent. For instance, it was said that habeas at common law protected military enemies, even when held abroad, and suggested that the Constitution's Habeas Suspension Clause incorporated this broad reach. This historical claim was not correct (see here). It was said that the Insular Cases—Supreme Court decisions arising out of U.S. governance of the Philippines and Puerto Rico at the turn of the twentieth century—were precedent for extending constitutional protections to noncitizens abroad under a flexible, totality-of-the-circumstances test. Boumediene adopted this reading of the Insular Cases, but it was simply wrong. As I have shown in detail, every justice who sat on the various Insular Cases thought that constitutional protections were not available until the United States had de jure sovereignty over a territory and Congress had created a civil government there.

It had been black letter law throughout the nineteenth century that noncitizens outside the United States lacked constitutional rights. See, for instance, United States v. Wong Kim Ark , Fong Yue Ting v. United States, and In re Ross. (See also my articles on the Founding and the Civil War era). The Insular Cases reaffirmed that.

And the rule that the Constitution did not protect noncitizens abroad was reiterated by the Supreme Court throughout the twentieth century, including in United States v. Belmont (1937) ("[O]ur Constitution, laws, and policies have no extraterritorial operation, unless in respect of our own citizens."), United States v. Curtiss-Wright Export Corp. (1936) ("Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens."), and Eisentrager.

To their credit, the amicus briefs supporting Hernandez on extraterritoriality do not claim that application of the Constitution to noncitizens abroad would have any historical pedigree (prior to 2008). They instead focus on Boumediene and the change that it (perhaps) wrought in U.S. constitutional law. The Hernandez brief, however, quotes and endorses Boumediene's inaccurate claim—which was based on a demonstrably wrong reading of the Insular Cases—that a flexible Constitution extending abroad to noncitizens was a "century old" phenomenon (at 12).

The Uniqueness of the Suspension Clause

None of the briefs that I have seen addressed an important distinction between the Suspension Clause at issue in Boumediene and the Fourth Amendment at issue in Hernandez. By its express terms, the protections of the Suspension Clause can be set aside by the political branches in the interest of national security. As the Constitution puts it, the privilege of the writ of habeas corpus may be "suspended" by the Congress and president acting together (and perhaps, as Lincoln believed, the president acting alone in certain circumstances) "when in cases of rebellion or invasion the public safety may require it." This is an important politically-controlled safety valve to prevent the Constitution from becoming the proverbial suicide pact. The Fourth Amendment or Fifth Amendments, if they apply, cannot be waived by the political branches, even if they judge that the exigencies of national security temporarily require it. To be sure, the Court construes the Fourth Amendment and Fifth Amendment Due Process Clause contextually and has suggested that concerns about terrorism might in some circumstances justify a more relaxed application of the Amendments' strictures (see my article at p. 1188 n.274). But the ultimate decision would be made by the judiciary, not by the branches charged with protecting the national security and possessed of the relevant information and expertise on the matter.

Bivens

The Court directed the parties in Hernandez to brief "whether the claim in this case may be asserted under Bivens v. Six Unknown Fed. Narcotics Agents," the 1971 Supreme Court decision allowing a judicially-created damages remedy against federal officials for some constitutional violations. (The statute, 42 U.S. C. § 1983, can only be used to sue state and local officials.)

This issue is probably the one on which Mesa, the border control agent, has the best chance of success. During the Warren-Burger years, majorities spearheaded by Justice Brennan sustained Bivens claims in three contexts: warrantless entry and search of an apartment and warrantless arrest, in violation of the Fourth Amendment; employment discrimination by a member of Congress in violation of the equal protection component of the Fifth Amendment; and cruel and unusual punishment of a federal prison inmate in violation of the Eighth Amendment.

Since then, the Court has refrained from recognizing Bivens claims in any new contexts. Conservative justices are most hostile about Bivens, but moderate and liberal-leaning justices are skeptical too. Kennedy wrote for the Court recently that Bivens suits are “disfavored.” Justice Souter, in an opinion joined by Breyer and Ginsburg, suggested that a Bivens remedy is “a novel rule that a proponent has a burden to justify affirmatively on policy grounds in every context in which it might arguably be recognized.” The full Court has stated that a Bivens remedy “is not an automatic entitlement no matter what other means there may be to vindicate a protected interest, and in most instances we have found a Bivens remedy unjustified.”

The Court is hostile to Bivens, especially but not only in foreign affairs or national security contexts, for a number of reasons. Two are stated expressly: It is concerned about excessively deterring executive officials, especially when they must rapidly and in complex circumstances take protective or security actions; and it worries about intrusive discovery.

In his concurrence in Verdugo, Kennedy might have departed somewhat from the extraterritoriality analysis of the majority opinion, but he did not disagree with the majority opinion's warning against applying the Fourth Amendment abroad because of the complications that would ensue if Bivens suits, including for excessive force by law enforcement or military personnel, could be brought by “aliens with no attachment to this country.” Besides Verdugo, there are many other examples of the Court showing reluctance to extend Bivens into realms involving foreign affairs or national security (see my article at p. 1144-45).

I have recently suggested that caution about extending Bivens into extraterritorial or national security areas might be justified for additional reasons. Compared to the situation with the overseas habeas suits the Court has allowed (at Guantanamo and in Iraq), the pool of potential plaintiffs for Bivens suits is astronomically larger. The number of noncitizens abroad whose communications are subject to U.S. electronic surveillance, for instance, probably numbers in the seven figures, at a minimum. Moreover, habeas litigation is inherently individual, and the government can decide to moot a troublesome case and avoid a legal precedent by simply releasing a detainee, something that it has done frequently with war-on-terror litigation. Bivens suits thus pose a risk of orders-of-magnitude more judicial intervention in extraterritorial and national security issues.

The briefing in Hernandez on the Bivens issue by the plaintiffs and their amici focuses on what it sees as the practical lack of any other remedy in this particular case. That is certainly a relevant factor supporting application of Bivens, but it is not dispositive. As I recently noted, the Supreme Court has at least four times “denied Bivens remedies in cases where the plaintiff had no other means of judicial redress.”

Law Free Zone?

It is an exaggeration to say, as the Hernandez brief did, that without a Bivens suit there would be a “legal no-man's land” in the cross-border context. For one thing, the Court could recognize the applicability of the Fourth Amendment but decline to allow a constitutional tort suit for money damages. That would leave it to the executive branch internally to enforce compliance with the law, and for courts to use injunctive or declaratory remedies. As noted, the U.S. brief at the cert stage pointed to U.S. criminal and Mexican criminal and tort remedies. Human rights law could also have some relevance. The United States is bound by the prohibition on arbitrary deprivations of life in the International Covenant on Civil and Political Rights, even though that treaty is not judicially-enforceable in U.S. courts. The Alien Tort Suit could allow a noncitizen to sue for extrajudicial killing in violation of customary international law, though, as interpreted by the D.C. Circuit in Ali v. Rumsfeld, the interaction of the Westfall Act and Federal Tort Claims Act might end up precluding ATS suits against U.S. officials like Mesa. If there were a border shooting with sufficient involvement or authorization by the Mexican government to say that it occurred “under actual or apparent authority, or color of law, of any foreign nation,” a tort suit for extrajudicial killing under the Torture Victim Protection Act could be available.

A brief on the Bivens/alternate remedies issue by professors James Pfander, Carlos Vazquez, and Anya Bernstein correctly points out that the Anglo-American tradition allowed tort suits against officials who exceeded their authority or otherwise acted unlawfully. But the brief does not adequately deal with a major distinction between common law tort suits and modern Bivens suits: Bivens suits arise under the Constitution, and hence a judicial decision in such a suit announces binding, indefeasible law that all government officials will feel bound to follow going forward in all relevantly-similar circumstances. A win for Hernandez could hamstring U.S. surveillance against, say, the Kremlin or Iran's Revolutionary Guards; a common law tort victory for Hernandez would have simply resulted in a payment of money damages.

Conclusion

Briefs for the other side are due in early January, and I hope to post some additional thoughts at that time.