Originally published by Slate
One need not look far these days to find agents of U.S. Customs and Border Protection in the news—from the frontlines of the Trump administration’s controversial “zero tolerance” policy along the U.S.-Mexico border to citizenship checkpoints along I-95 in northern Maine. Now more than ever, ensuring that CBP agents are held accountable if and when they violate individuals’ constitutional rights seems like an obvious imperative.
In March, however, the 5th U.S. Circuit Court of Appeals (the federal appeals court with jurisdiction over Louisiana, Mississippi, and Texas) held that, even if a CBP agent at the U.S.-Mexico border commits what one judge described as a “cold-blooded murder,” the victim’s family cannot sue him for damages. Among other things, the court of appeals concluded in Hernández v. Mesa that federal judges generally should not provide such relief in cases presenting any kind of “national security” or “foreign policy” concerns. In the process, the 5th Circuit implied that damages will never be available against CBP officers even for egregious violations of clearly established constitutional rights, and it did so at an especially inauspicious time to remove even the specter of deterrence from officers of the nation’s largest law enforcement agency.
The Hernández case (in which I am co-counsel to the plaintiffs) started with the fatal shooting, on June 7, 2010, of Sergio Adrián Hernández Güereca, a 15-year-old Mexican national who, according to his parents’ lawsuit, was playing with friends in the culvert along the U.S.-Mexico border outside El Paso (and was unarmed) when Jesus Mesa, a CBP agent, shot and killed him. Hernández’s parents brought a wrongful death action against Mesa, claiming, among other things, that the shooting was in violation of Hernández’s rights under the Fourth and Fifth Amendments. Although the case posed interesting (and unanswered) questions about the extent to which the Constitution applies at (and just across) the border, it was resolved by the 5th Circuit, the first time around, on the basis of “qualified immunity”—the idea that, even if Mesa did violate Hernández’s rights, it was not “clearly established” at the time of the shooting that Mesa’s conduct was unconstitutional (because it was not “clearly established” if the Constitution applied to Hernández at all).
Last June, however, the Supreme Court vacated and remanded the 5th Circuit’s decision, ruling that Mesa did not know at the time of the shooting that Hernández was a noncitizen, and therefore could not have known that the person at whom he was shooting might lack constitutional protection. On remand, the 5th Circuit once again sided with Agent Mesa, this time arguing that federal courts generally should not recognize judge-made damages remedies, especially in cases raising the kinds of national security and foreign policy concerns that tend to arise at the border. In so ruling, the 5th Circuit purported to rely on the Supreme Court’s decision last year in Ziglar v. Abbasi, in which a four-justice majority (out of the six justices who heard the case) refused to recognize a damages remedy against senior government officials for their role in the roundup and detention of immigrants who were Muslim and/or of Arab descent after Sept. 11, 2001.
Abbasi is a deeply disturbing decision, both in how it applies (and ignores) prior precedent and in its more fundamental framing of the role of the federal courts vis-à-vis the political branches. But for all its flaws, Abbasi repeatedly stressed that its holding was “not intended to cast doubt on the continued force, or even the necessity” of judge-made damages remedies in search-and-seizure cases, and that “[t]he settled law … in this common and recurrent sphere of law enforcement, and the undoubted reliance upon it as a fixed principle in the law, are powerful reasons to retain [them] in that sphere.” In other words, although Abbasi frowned on judge-made damages remedies to challenge high-level policy decisions by senior government officials in the midst of national security crises, it went out of its way to not similarly disavow damages remedies for “individual instances of … law enforcement overreach.” Only one of the six justices who participated in Abbasi (Clarence Thomas) disagreed.
Moreover, unlike in Abbasi, the plaintiffs in the Hernández case have no other possible remedy. A federal statute bars them from suing Mesa under state tort law. And as with most claims against rogue law enforcement officers, there is no meaningful opportunity to challenge the officer’s conduct in advance through a suit for declaratory or injunctive relief. Thus, for plaintiffs like Hernández’s parents, the alternative to judge-made damages for Agent Mesa’s allegedly unconstitutional conduct is, well, nothing.
It might be easy to understand, or at least accept, the federal courts’ skepticism at going out of their way to provide remedies in a one-off case, where there is no real concern that the officer’s allegedly unconstitutional conduct could or would recur. But the tragic facts of Hernández’s case are, unfortunately, not the least bit aberrational. The federal appeals court in San Francisco is currently considering similar questions in a case arising out of a fatal cross-border shooting in Arizona, and there was just another fatal shooting by a CBP agent of an unarmed noncitizen along the border near Laredo, Texas. More generally, one need not look far to find CBP agents on the literal and figurative front lines in any number of other contemporary contexts—contexts in which there ought to be common cause in the need to deter constitutional abuse.
To that end, on June 15, we brought the Hernández case back to the Supreme Court, asking the justices to review (and reverse) the 5th Circuit’s ruling and to recognize that the federal courts can indeed hold CBP agents accountable if and when they violate the Constitution. Now more than ever, there ought to be common cause in ensuring that CBP agents act consistently with the Constitution, and in providing remedies to their victims in case in which they don’t.