A Border Patrol agent shot their son — will the Hernandez family get their day in court?

When 15-year-old Sergio Adrian Hernandez played with his friends in a large ditch at the U.S.-Mexico border on June 7, 2010, he had no idea the game would be his last. Shortly after Hernandez ran across the ditch from the U.S. side to the Mexico side, a U.S. Border Patrol agent shot him in the face, killing him.

If Hernandez had been standing a few feet away when he was shot, on American soil, there is little question that his family would be entitled to justice: Under a famous case, Bivens v. Six Unknown Unnamed Agents, individuals injured by rogue law enforcement agents can vindicate their rights by suing directly under the Constitution for monetary damages. Hernandez’s family thus would be able to call witnesses to convince a jury that what happened on that tragic day was excessive force, and the border agent would be entitled to offer a competing account. The jury would decide which version of the facts to believe, and a decision would follow. That is how justice is administered in our venerable system.

As fate would have it, though, Hernandez was standing just on the other side of the border. That fact gives rise to a thorny question that the Supreme Court will debate on Nov. 12, when it hears oral arguments in Hernandez v. Mesa.

The specific question in the case is wonky, but it has sweeping implications for how we think about the real-world value of constitutional rights: Should the Supreme Court apply the rule announced in Bivens to situations where a U.S law enforcement officer on American ground violates the constitutional rights of a foreign national on foreign soil? If the answer is “yes,” the Hernandez family will get its day in court. If the answer is “no,” then even victims of cold-blooded cross-border violence by border patrol agents would get nothing. Incidents of this kind happen with surprising frequency; by one count, more than 90 people have died in the past decade alone from encounters with U.S. border agents.

So what is the right answer? Anyone who tells you that the case is easy — in either direction — is guilty of some serious spinning. The truth is, Supreme Court precedent, constitutional principles and reasonable policy concerns provide strong support for both outcomes.

To see how, start by focusing on the crux of the dispute: Congress’s complete silence as to whether victims of cross-border violence committed by U.S. law enforcement agents should be entitled to sue.  

One possible inference from this silence is that Congress had no desire to displace the general rule announced decades ago in Bivens. Just like in that case, where lawless conduct by line-level law enforcement officers gave rise to a direct right to sue under the Constitution itself, so too here. That inference is bolstered by the fact that a ruling against Hernandez would trigger doubt as to whether a later congressional enactment — the Westfall Act, which bars persons from suing the agent on state law grounds in state court — violates the Constitution. 

For the combined effect of the Westfall Act and the denial of a Bivens remedy would be to deny Hernandez “any judicial forum for a colorable constitutional claim,” something the court previously has characterized as a “serious constitutional question.” Strong policy considerations further support Hernandez’s case: without a damages remedy under Bivens, how are we to deter egregious misconduct by Border Patrol agents?

Yet one might also interpret Congress’s silence in precisely the opposite way. In terms of precedent, the court’s most recent decision on point makes clear that “expanding the Bivens remedy” is now a “disfavored judicial activity,” essentially cabining Bivens from being applied in any “new context.” It doesn’t take much creativity to argue that a cross-border shooting of this kind is markedly different from Bivens itself, which involved a warrantless search of a U.S. citizen’s home.  

The reluctance to apply Bivens in new situations is itself grounded in constitutional concerns, in particular the separation of powers principle that vests lawmaking power — including the power to authorize individuals to sue in court — in the legislature. Leaving that choice to the legislature is arguably wise policy, as well. Congress, not the Supreme Court, might be best suited to balancing the foreign affairs and national security implications of opening up law enforcement agents to personal liability for their conduct at the border.

In times such as these, the Supreme Court may be tempted to pick a winner and write an opinion pretending as though this case was easy all along. Given the conservative majority on the court, it seems likely that such an opinion will hold that the Hernandez family has no right to vindicate their son’s life in court. 

But there is another option. The court could candidly admit that this case is hard — that, given the strong arguments on both sides, no honest jurist could decide with certainty which competing inference is the correct one to draw from Congress’s silence. Freed of the mythical burden to pick some objectively “right” answer, the court then could decide the case using a measure of common sense. Rather than venturing some guess about what Congress meant when it did (and said) nothing, the court could ask: which side, if it loses, would be best able to avoid its harm anyhow, either through private action or by changing the law through the democratic process? 

On that score, the answer is clear. If the court rules for the Hernandez family, law enforcement agents have readily attainable options for avoiding liability in the future. For one thing, they can lobby Congress to block such lawsuits moving forward through express legislation. For another, they can simply refrain from lawless conduct at the border and instead follow the Border Patrol’s own use of force policy. And to the extent that border agents must act quickly at the border in uncertain circumstances, where it isn’t clear whether the use of force would be excessive, the existing doctrine of qualified immunity already protects them.

But if the court rules against the Hernandez family, what are people in their situation to do?  Whereas Border Patrol agents can simply refrain from the blatant use of excessive force, Hernandez’s parents have no recourse now that their son is dead. Moreover, Congress is surely less likely to respond favorably to the pleas of foreign citizens whose family members have been killed by U.S. law enforcement officers than it is to respond to the officers themselves. 

A ruling for the Hernandez family on this ground — that, although both sides have reasonable legal arguments, Border Patrol agents are better able to avoid the costs of a Supreme Court defeat — would show honesty and humility on the part of the Supreme Court. Honesty because not all legal questions yield clear answers; humility because the court’s decision would leave the affected groups and Congress free to fix this problem on their own.  

In an era when the Supreme Court’s legitimacy appears to grow more and more at risk, honesty and humility are exactly the values that the court should strive to embrace.

Aaron Tang (@AaronTangLaw) is a former law clerk to Associate Justice Sonia Sotomayor at the Supreme Court of the United States and a law professor at the University of California, Davis.