11.12.19 / HERNANDEZ V. MESA


NOAM HASSENFELD (Guest Host, Reporter/Producer): I’m Noam Hassenfeld filling in for Sean Rameswaram while he’s on vacation.

And just a warning, today’s episode includes audio of gunshots and someone being killed.

We’ll start in a moment.


IAN MILLHISER (Vox Supreme Court reporter): So in June of 2010, a group of Mexican children were playing a game by the Mexican border.


IAN: They run up to the fence on the U.S. side of the border. They touch it and they'd run back. And eventually a Border Patrol agent, his name is Jesus Mesa, showed up and detained one of the boys. What happened next is contested. The government says that some people on the Mexican side of the border, including a boy named Sergio Hernandez, started throwing rocks at Mesa. Mesa drew his gun and he shot Hernandez in the face. 


IAN: Shortly thereafter, a cell phone video emerged and it paints a very different picture.

<CLIPS> WOMAN SPEAKING IN SPANISH: Le están tirando piedras… [They are throwing rocks at him...]

JUAN GONZALEZ: The grainy footage shows a Border Patrol agent detaining one man at gunpoint.

NINA TOTENBERG: A woman's voice is saying that some of the boys had been throwing rocks. But the video does not show that.

GONZALEZ: While he has the man on the ground, he points his gun towards a second person on the Mexican side of the border.

TOTENBERG: As the boy peeked out. Agent Mesa, 60 feet away or so on the U.S. side, drew his gun aimed at the boy and shot him dead.

GONZALEZ: The video then shows a body next to a column under the bridge.

IAN: The issue in this case is what should happen to Mesa. And now the Supreme Court is going to answer whether or not Mesa gets off scot free for what very well may have been a shooting without provocation.


NOAM: Ian Millhiser, Supreme Court, Vox. This case, Hernandez v. Mesa, was argued in front of the Supreme Court today. But this is a case where a border agent killed someone. Why isn’t it a criminal trial?

IAN: Well the answer to that is simply that the Justice Department has taken his side. it would be the Justice Department who would bring a criminal prosecution. And the government has already said they won't prosecute him.

<CLIP> NEWS: Hernandez's family sued Mesa in federal court, but the lower court threw the case out, saying that the Constitution's protections did not apply to Hernandez as he was not a U.S. citizen and was standing in Mexico when he was killed.

IAN: So the only potential remedy for Hernandez's family is to sue Mesa and to collect money damages for the fact that they killed his son. What this case is about is about even when the Justice Department won't go against a law enforcement officer, whether it is still possible for individuals to file a lawsuit against a federal law enforcement officer and at the very least, collect money damages for that officer's violation of the constitution.

NOAM: So what is the Court deciding here? Is it trying to decide who’s side of the story to believe?

IAN: The short answer is that at this stage, it doesn't matter who's telling the truth. And so the issue before the Supreme Court is we have to assume that Hernandez's parents are telling the truth. We have to assume that Mesa simply pulled his gun and shot Hernandez for no justifiable reason whatsoever. And if you assume those facts then the question becomes, is there any legal recourse when a border agent shoots a Mexican child across the border for no reason?

NOAM: You know that video that was released soon after the shooting, it looks pretty bad for Mesa. I mean it's hard to watch that and not feel like he should be held accountable in some way. What's the argument that his side is making that he shouldn’t be able to be sued?

IAN: So it all goes back to this case called Bivens v. Six Unknown Named Agents.


IAN: Bivens was a case was decided in the early 70s when we had a much more liberal Court. And Bivens was a fairly routine Fourth Amendment case. So the Fourth Amendment protects us against unreasonable searches and seizures. And in this case, it was just a case of a bunch of federal agents broke into someone's home without a warrant, to arrest him, which is a pretty typical Fourth Amendment case.

<CLIP> STEPHEN A. GRANT (BIVENS’ LAWYER): Six narcotics agents with guns drawn forced their way into Bivens' home and they put handcuffs on him in front of his wife and children, took him away to be further questioned and booked, as well as subjected to an extremely thorough humiliating search of his person.


IAN: The issue is that the Constitution is silent about what happens when it is violated.

<CLIP> GRANT: The first issue is whether violation of the constitutional right to be secure against unreasonable search and seizure gives rise to a federal claim for damages.

IAN: There is nothing in the Constitution saying that you can sue the law enforcement agents who violate the Constitution and the Court basically impose the Spider-Man rule. With great power comes great responsibility. If someone is given a badge and a gun, we want to make sure that they think twice about abusing that power. And so Bivens said that if you violate the Fourth Amendment, you can be sued as a federal law enforcement officer for violating the Constitution.


NOAM: OK, so there’s a precedent for the court ruling that a federal agent can be sued. So how could the Court possibly look at this situation here in Hernandez v. Mesa and say, no, the border agent can't be sued?

IAN: I mean, the short answer is that Bivens is almost 50 years old and there's been a lot of case law written by some very conservative justices. And really starting in the 1980s, the Court has moved dramatically to the right. And the conservative view is kind of an anti-Spider-Man rule. It's that we give these people great power and they should be able to use it. And so if you read the lower court decision, the Fifth Circuit's decision, which ruled in Mesa's favor, it argues, look, Border Patrol agents are doing really important work, that they stop terrorists from coming into the country. They stop people that we do not want here from coming into this country. And so we do not want them to hesitate when they do their job. What the government argues in the Hernandez case is that Border Patrol agents are involved in national security work. Part of their job is to keep terrorists out of the country. And so the Supreme Court has kept layering exception upon exception, upon exception upon Bivens. Until you're now at the point where the Supreme Court is trying to answer the question, is it even possible for the Hernandez family to bring a suit against Jesus Mesa. Under Bivens, as it was understood in the 70s, the answer to that question is probably yes. Under the narrowing of Bivens that we've seen as the Supreme Court has moved to the right, the answer to that is almost certainly no.

NOAM: What kind of argument is the the Hernandez family making in response?

IAN: They're saying two things. I mean, the first thing that they're saying is that this is still right within the core of Bivens. Bivens was a case that was a basic unlawful search and seizure under the Fourth Amendment case. So they're saying, look, forget about all the exceptions. This is the heartland of Bivens. This is just look, someone was seized unreasonably, you know, without lawful justification. And so you don't have to worry about all the exceptions to Bivens. What the government says and you know, they have a point, is that typically these shootings do not happen across an international border. Because of the sensitive issues of national security that arise when it comes to border security, the Court should just stay out of this. And like any remedy that's going to exist is going to come from some kind of negotiation with the Mexican government and not from the courts.

NOAM: So do both sides have sort of a reasonable argument here? I mean it seems like each one can make a pretty sound argument based on history and legal precedent.

IAN: Right. A smart lawyer can argue it on either side. And there were very competent briefs argued on either side. But in the end, you know, there's some court cases that come down to the law and there's some court cases that really come to values. And the reason why Bivens has been shrunk is because the courts have moved to the right, we've had more justices who don't believe in the Spider-Man rule...

NOAM: Mmhm

IAM: ...as it was envisioned by the original Bivens decision. They believe that we should do more to protect law enforcement and less to cause law enforcement to worry about what's going to happen to them if they do something like what was done to Sergio Hernandez.


IAN: I wish I could have something profound to say here about legal precedents, but often legal precedents are just the things that judges talk about when what they're actually doing is putting their own values into the law.



NOAM: Ian, the heart of the issue here is Bivens, this case from about 50 years ago that said that federal agents can be sued. But you said the Court has sort of eroded that ruling over time?

IAN: Well, I guess I'll start this story at the second to last chapter.

                       SCORING - SONG TO BRING THE SUN BACK

IAN: So the Court's most recent major Bivens case was a case called Ziglar v. Abbasi. This is a 2017 decision. And the facts here are also really stark. It's a post-9/11 case. After 9/11, the government went around and like just started looking for suspicious immigrants, basically. And they rounded up a bunch of people who they thought, well, maybe these people might be terrorists. And the conditions were horrible. They were like stuck in a tiny cell for 23 hours a day. When they were taken out, they were in shackles. The lights were on for 24 hours. They could barely sleep. They weren't even allowed to keep a toothbrush. And then eventually, when six of them were deported, they sued and they said, look, like there's no reason to think we were terrorists. I mean, yes, we were undocumented immigrants. But like, there's no reason to think that we had done any of the things that you suspected us of. You treated us horribly. You violated the Constitution. And they... they brought a Bivens claim.

<CLIP> LAWYER RACHEL MEEROPOL: Mr. Chief Justice, and may it please the Court: Under Petitioners' theory, any Muslim or Arab noncitizen present in this country could be placed for months in solitary confinement for violating the immigration law. But this Court has a historic role to play in ensuring that race and religion do not take the place of legitimate grounds for suspicion and in deterring future Federal officials from creating government policy to do the same.

IAN: And what the Supreme Court said is Bivens remedies are now disfavored. It said that the Court should be very reluctant to extend Bivens to any new context.

<CLIP> CHIEF JUSTICE JOHN ROBERTS: We've been very explicit about the restraint in extending the Bivens action beyond its original contours.


IAN: And then it brought up national security. It said that this was 9/11. We'd had this horrible terrorist attack. And we the Courts shouldn't be telling the government what to do when there's this national security crisis.

<CLIP> ROBERTS: The risk of personal financial liability might cause an official to second guess difficult but necessary decisions concerning National Security policy.

IAN: And so if it turned out that these six people were mistreated in violation of the Constitution. Tough.


                  SCORING OUT

NOAM: So I guess the Abbasi ruling is a pretty bad precedent for the Hernandez family?

IAN: I think that the Hernandez family has has a tough road ahead of them. I mean... I would not bet on the Supreme Court ruling that they can bring a Bivens suit you know given the Abbasi precedent. I think that. The Court's been pretty clear that it's not a fan of Bivens. Now, well, will they overrule Bivens completely in this case? I don't know.

NOAM: If the Court, as you suspect, says that the family can’t sue Mesa, I assume that would have some significant implications for other federal agents?

IAN: Right. So, there have been cases where ICE agents have rounded up U.S. citizens because they wrongly believed that that U.S. citizen was an undocumented immigrant. And so the implications, if ICE is not subject to Bivens suits is that, you know, a United States citizen could be rounded up by federal officers, thrown in in an ICE detention facility, you know, potentially kept there for months. Some of the people in the Abbasi case were locked in these facilities for months. And then when you get out, the government says, ‘Whoops, my bad’, and that's all you get.

NOAM: Isn't this, this exact scenario like the reason we have a Bill of Rights?

IAN: Right.

NOAM: To establish like the limits that the government cannot cross in order to have a, quote unquote, safe society?

IAN: Yeah. You know, it's a really good point. I mean, the question here is really whether we have a constitution when it hurts. There are times when it's very easy to follow the Constitution. Like that there are times, you know, like the government does something a little sensory that violates the First Amendment. Everyone thinks it's dumb. The thing that the person said doesn't really hurt anyone. And then like that person gets to win a lawsuit. And there's often very little at stake in those sorts of cases.

NOAM: Mmhm.

IAN: And there's a tremendous amount at stake in the Abbasi case. I mean, it was a case about the single greatest national security failure in recent years. And what should be done to make sure that it doesn't happen again. And the question becomes, do we believe in the Constitution when the stakes are high, or is it only something we really care about when like, oh right, there isn't really much that can go wrong if we respect the Constitution here.

NOAM: But still, this isn’t a case of you know, detention like the Abbasi case. This is… this is at a basic level, a case is about a government employee killing an unarmed kid.

IAN: Well, I mean, imagine if Jesus Mesa were not a border patrol agent. Imagine if he wasn't a law enforcement agent at all, like imagine if he was just a vigilante who like grabbed some kid on the U.S.-Mexican border and then pulled out a gun and shot some other kid. You know, what crime would that be? That would be murder. And like what Hernandez v. Mesa is about is whether or not there can be accountability, at least in a civil lawsuit, whether there could be accountability for a federal law enforcement agent who does something that if a private citizen did it, it would be murder. What makes Hernandez v. Mesa such a striking case is that the worst thing that could have happened happened here. You know, someone was killed.

                 SCORING - MYSTERY ENDING

IAN: And so a question for the next Congress and the next president is going to be, you know, Congress can always say what was done here was wrong and we're going to voluntarily compensate you. But ultimately, I suspect suspect that what we're going to learn from that case is that these families are going to have to lobby Congress and that's going to be a much heavier lift than bringing a lawsuit.



NOAM: Ian Millhiser writes about the Supreme Court for Vox.

I’m Noam Hassenfeld filling in for Sean Rameswaram while he’s on vacation.

This is Today, Explained.