Standing on the Wrong Side: Hernandez v. Mesa and Bivens Remedies in the Context of Cross-Border Shootings by Federal Law Enforcement

Abstract

Bivens claims provide individual plaintiffs the ability to seek civil remedies for violations of their constitutional rights by federal actors. In March of 2018, the Fifth Circuit held, in Hernandez v. Mesa, that a Bivens remedy was unavailable where a Border Patrol officer standing in the United States shot and killed a Mexican citizen on the other side of the border. In August of 2018, with nearly identical facts, the Ninth Circuit, in Rodriguez v. Swartz, split from the Fifth Circuit by holding that a Bivens remedy was indeed available for an extra-territorial shooting. This Comment acknowledges that the Fifth Circuit’s denial of a Bivens remedy is consistent with the framework announced by the Supreme Court in 2017 in Ziglar v. Abbasi and will most likely be upheld. This Comment argues, however, that leaving victims of extraterritorial shootings without a cause of action is deeply problematic. Congress should act to provide a remedy for constitutional violations perpetrated by federal law enforcement at international boundaries, regardless of extraterritoriality.