Hernandez v. Mesa

885 F.3d 811

Jesus C. HERNANDEZ, Individually and as the surviving father of Sergio Adrian Hernandez Guereca, and as Successor-in-Interest to the Estate of Sergio Adrian Hernandez Guereca; Maria Guadalupe Guereca Bentacour, Individually and as the surviving mother of Sergio Adrian Hernandez Guereca, and as Successor-in-Interest to the Estate of Sergio Adrian Hernandez, Plaintiffs–Appellants

v.Jesus MESA, Jr., Defendant–Appellee

No. 12-50217

United States Court of Appeals, Fifth Circuit.

March 20, 2018

Steve D. Shadowen, Esq., Hilliard & Shadowen, L.L.P., Austin, TX, Rudy O. Gonzales, Jr., Robert C. Hilliard, Esq., Marion M. Reilly, Hilliard Martinez Gonzales, L.L.P., Corpus Christi, TX, for Plaintiffs–Appellants.

Randolph Joseph Ortega, Esq., Ellis & Ortega, El Paso, TX, Louis Elias Lopez, Jr., Esq., Law Office of Louis E. Lopez, El Paso, TX, for Defendant–Appellee JESUS MESA, JR.

Esha Bhandari, American Civil Liberties Union Foundation of New York, New York, NY, Lee P. Gelernt, Esq., American Civil Liberties Union Foundation Immigrants' Rights Project, New York, NY, Alexandra Freedman Smith, American Civil Liberties Union of New Mexico, Albuquerque, NM, Cecillia D. Wang, American Civil Liberties Union Foundation Immigrants' Rights Project, San Francisco, CA, for Amici Curiae AMERICAN CIVIL LIBERTIES UNION FOUNDATION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF ARIZONA, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NEW MEXICO, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES.

Hashim M. Mooppan, Esq., Katherine Twomey Allen, U.S. Department of Justice Civil Division, Appellate Section, Washington, DC, for Amicus Curiae UNITED STATES OF AMERICA.

Nancy Winkelman, Attorney, Schnader, Harrison, Segal & Lewis, L.L.P., Philadelphia, PA, for Amici Curiae BORDER NETWORK FOR HUMAN RIGHTS, PASO DEL NORTE CIVIL RIGHTS PROJECT, SOUTHERN BORDER COMMUNITIES COALITION.

Donald Francis Donovan, Esq., Senior Counsel, Debevoise & Plimpton, L.L.P., New York, NY, for Amicus Curiae GOVERNMENT OF THE UNITED MEXICAN STATES.

Guinevere Elizabeth Moore, Teague, TX, Pro Se.

Guinevere Elizabeth Moore, Teague, TX, for Amicus Curiae ROBERT T. MOORE.

Before STEWART, Chief Judge, and JOLLY, DAVIS, JONES, SMITH, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, and COSTA, Circuit Judges.^*

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

EDITH H. JONES, Circuit Judge, joined by STEWART, Chief Judge, JOLLY, DAVIS, SMITH, DENNIS,^** CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES,^*** HIGGINSON, and COSTA, Circuit Judges.

This appeal returned to the court en banc following remand from the United States Supreme Court. Prompted by the High Court, we have carefully considered a question antecedent to the merits of the Hernandez family's claims against United States Customs & Border Patrol Agent Mesa: whether federal courts have the authority to craft an implied damages action for alleged constitutional violations in this case. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) [hereinafter Bivens ]. We hold that this is not a garden variety excessive force case against a federal law enforcement officer. The transnational aspect of the facts presents a "new context" under Bivens , and numerous "special factors" counsel against federal courts' interference with the Executive and Legislative branches of the federal government.

BACKGROUND

Because the plaintiffs' claims were dismissed on the pleadings, the alleged facts underlying this tragic event are taken as true. Fed. R. Civ. P. 12(b)(6) ; Toy v. Holder , 714 F.3d 881, 883 (5th Cir. 2013). Sergio Hernandez was a 15-year-old Mexican citizen without family in, or other ties to, the United States. On June 7, 2010, while at play, he had taken a position on the Mexican side of a culvert that marks the boundary between Ciudad Juarez, Mexico, and El Paso, Texas. The FBI reported that Agent Mesa was engaged in his law enforcement duties when a group of young men began throwing rocks at him from the Mexican side of the border. From United States soil, the agent fired several shots toward the assailants. Hernandez was fatally wounded.

Hernandez's parents alleged numerous claims in a federal lawsuit against Agent Mesa, other Border Patrol officials, several federal agencies, and the United States government. The federal district court dismissed all claims, but was reversed in part by a divided panel of this court. Hernandez v. United States , 757 F.3d 249, 255 (5th Cir. 2014). The panel decision allowed only a Bivens claim, predicated on Fifth Amendment substantive due process, to proceed against Agent Mesa alone. Id. at 277. This court elected to rehear the appeal en banc. Without ruling on the cognizability of a Bivens claim in the first instance,¹ we concluded unanimously that the plaintiffs' claim under the Fourth Amendment failed on the merits and that Agent Mesa was shielded by qualified immunity from any claim under the Fifth Amendment. We rejected the plaintiffs' remaining claims. See Hernandez v. Mesa , 785 F.3d 117, 119 (5th Cir. 2015) (en banc).

The Supreme Court granted certioriari and heard this case in conjunction with Ziglar v. Abbasi , ––– U.S. ––––, 137 S.Ct. 1843, 198 L.Ed.2d 290 (2017). In Abbasi , the Court reversed the Second Circuit and refused to imply a Bivens claim against policymaking officials involved in terror suspect detentions following the 9/11 attacks. The Court, however, remanded for reconsideration by the appeals court whether a Bivens claim might still be maintained against a prison warden.

The Court's decision in this case tagged onto Abbasi by rejecting this court's approach and ordering a remand for us to consider the propriety of allowing Bivens claims to proceed on behalf of the Hernandez family in light of Abbasi's analysis.

DISCUSSION

The plaintiffs assert that Agent Mesa used deadly force without justification against Sergio Hernandez, violating the Fourth and Fifth Amendments, where the fatal shot was fired across the international border. No federal statute authorizes a damages action by a foreign citizen injured on foreign soil by a federal law enforcement officer under these circumstances. Thus, plaintiffs' recovery of damages is possible only if the federal courts approve a Bivens implied cause of action. Abbasi instructs us to determine initially whether these circumstances present a "new context" for Bivens purposes, and if so, whether "special factors" counsel against implying a damages claim against an individual federal officer. To make these determinations, we review Abbasi 's pertinent discussion about " Bivens and the ensuing cases in [the Supreme Court] defining the reach and the limits of that precedent." Abbasi , 137 S.Ct. at 1854.

In Abbasi , the Court begins by explaining that when Congress passed what is now 42 U.S.C. § 1983 in 1871, it enacted no comparable law authorizing damage suits in federal court to remedy constitutional violations by federal government agents. In 1971, the Bivens decision broke new ground by authorizing such a suit for Fourth Amendment violations by federal law enforcement officers who handcuffed and arrested an individual in his own home without probable cause. Within a decade, the Court followed up by allowing a Bivens action for employment discrimination, violating equal protection under the Fifth Amendment, against a Congressman.² The Court soon after approved a Bivens claim for constitutionally inadequate inmate medical care, violating the Eighth Amendment, against federal jailers.³ According to the Court in Abbasi , these three cases coincided with the "ancien regime "⁴ in which "the Court followed a different approach to recognizing implied causes of action than it follows now." Abbasi , 137 S.Ct. at 1855.

The "ancien regime " was toppled step by step as the Court, starting in the late 1970s, retreated from judicially implied causes of action⁵ and cautioned that where Congress "intends private litigants to have a cause of action," the "far better course" is for Congress to confer that remedy explicitly. Cannon v. Univ. of Chi. , 441 U.S. 677, 717, 99 S.Ct. 1946, 1968, 60 L.Ed.2d 560 (1979). Abbasi acknowledges that the Constitution lacks as firm a basis as congressional enactments for implying causes of action; but the "central" concern in each instance arises from separation-of-powers principles.

Abbasi , 137 S.Ct. at 1857. Consequently, the current approach renders implied Bivens claims a "disfavored"⁶ remedy. Id. (citing Ashcroft v. Iqbal , 556 U.S. 662, 675, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009) ). The Court then lists the many subsequent cases that declined to extend Bivens under varying circumstances and proffered constitutional violations. Id.

Abbasi goes on to reiterate with an exacting description the two-part analysis for implying Bivens claims. We turn to the two inquiries by comparing Abbasi 's separation-of-powers considerations and its facts to the present case.

A. New Context

The plaintiffs assert that because the allegedly unprovoked shooting of a civilian by a federal police officer is a prototypical excessive force claim, their case presents no "new context" under Bivens . This court, including our colleagues in dissent, disagrees.⁷ The fact that Bivens derived from an unconstitutional search and seizure claim is not determinative. The detainees in Abbasi asserted claims for, inter alia , strip searches under both the Fourth and Fifth Amendments, but the Supreme Court found a "new context" despite similarities between "the right and the mechanism of injury" involved in previous successful Bivens claims. Abbasi , 137 S.Ct. at 1859. As Abbasi points out, the Malesko case rejected a "new" Bivens claim under the Eighth Amendment,⁸ whereas an Eighth Amendment Bivens claim was held cognizable in Carlson ; and Chappell rejected a Bivens employment...