Jacob Polce | Crossfire Over Cross-Border Shootings: Does Bivens Extend to Foreign Nationals Killed Abroad by American Agents?

BACKGROUND

In 42 U.S.C. §1983, Congress provides a damages remedy for the violation of constitutional rights by state officials, but no such provision for federal officials exists. The Supreme Court recognized in Bivens v. Six Unknown Named Agents (1971) that an implied damages action could be brought against a federal official who violated the Fourth Amendment protection against unreasonable searches and seizures. In Ziglar v. Abbasi (2017), the Court rejected a Bivens claim from undocumented immigrants who were detained after the September 11 terrorist attacks. The Court held that, for a novel Bivens claim to succeed, it must be accompanied by some special factor that justifies the judiciary—as opposed to Congress—allowing such a suit for damages against federal officials. In Abbasi, that “special factor” did not exist.

The Court simultaneously declined to hand down an opinion in Hernandez v. Mesa (2017), a case appealed from the Fifth Circuit, in which the court held that a Mexican citizen killed on Mexican soil by a United States border agent is not protected by the Constitution. The Court remanded Hernandez to the Fifth Circuit in light of the Court’s holding in Abbasi.

ISSUE

Following Abbasi, can a suit for damages against a federal agent involving a cross-border shooting be sustained under Bivens?

THE SPLIT

Since the Abbasi decision, the Fifth and Ninth Circuits have applied it differently to cross-border shootings. When Hernandez was remanded, the Fifth Circuit applied Abbasi and ruled in 2018 that Bivens did not extend to the shooting. The court held that the cross-border shooting at issue did represent a “new context” for Bivens claims—specifically, the court noted that the case raised questions about the Constitution’s extraterritorial applicability to foreign nationals that the Supreme Court has not answered.

The court then looked to special factors before extending Bivens. Applying Abbasi’s separation-of-powers analysis, the court found three special factors in the Hernandez claims. First, the court contended that this proposed extension of Bivens would upset the existing separation of powers, which places national security under the purview of Congress and the President. More specifically, the court held that the threat of Bivens liability could undermine the Border Patrol’s ability to perform duties essential to national security—a responsibility specially granted by Congress.

Second, the court reasoned that extending Bivens in this instance would risk interference with foreign affairs. The court observed that by extending Bivens to cover a cross-border shooting, it would contradict the Executive Branch’s policy decision to deny extradition of the federal agent and to refuse to prosecute the agent. Therefore, the judiciary stepping in could unduly complicate American-Mexican foreign relations.

Third, the court held that Congress’s failure to provide a damages remedy in these circumstances is telling. The court found that silence to be intentional and thus illustrative of a purposeful gap in remedy for these types of cases.

But just months after the Hernandez decision from the Fifth Circuit, the Ninth Circuit handed down a ruling on the same issue. In Rodriguez v. Swartz, plaintiff alleges that Border Agent Swartz, without provocation, shot and killed a 16-year-old boy walking down a street in Mexico.  In Rodriguez, the Ninth Circuit held that the mother of the Mexican citizen who was shot and killed in Mexico by a United States federal agent had a cause of action against the agent. Splitting with the Fifth Circuit, the Ninth Circuit applied the “new context” element of Bivens more narrowly, holding that applying the Fourth Amendment to these cases would only mean that federal officers cannot shoot people without reason.

Turning to special factors, the court differentiated Abbasi—it emphasized that there, the Court considered detention policies after September 11, not at all seizures and general incarceration policies. Therefore, the relevant examination under Abbasi was with the specific facts alleged, not cross-border shootings generally. And by narrowing the scope to the individual shooting, the court found that extending Bivens to allow the Mexican mother’s claim would not implicate national security: “[N]o one suggests that national security involves shooting people who are just walking down a street in Mexico.” Further, allowing liability here would not deter border patrol agents from performing their duties.

Finally, the Ninth Circuit held that extending Bivens would not harm America’s diplomatic efforts or complicate foreign policy. Instead, “it would threaten international relations if we declined to extend a cause of action, because it would mean American courts could not give a remedy for a gross violation of Mexican sovereignty.”

Taken together, the Ninth Circuit interpreted these factors to hold that Bivens can be extended to this class of cases.

LOOKING AHEAD

In remanding Hernandez, the Supreme Court allowed lower courts to apply Abbasi and extend Bivens where appropriate. Given that two circuits have already disagreed on the meaning and application of Abbasi in cross-border shootings in just a year, the issue seems ripe for Supreme Court review. Additionally, three Justices have already articulated their positions on this issue: in remanding Hernandez, Justices Breyer and Ginsburg authored dissents in support of allowing the plaintiffs to bring suit, and Justice Thomas issued a separate dissent indicating that he would have sided with the defendants.