A few months ago, I wrote about Hernandez v. Mesa, the case of a cross-border shooting of a Mexican teen by a U.S. Border Patrol agent. Today, instead of issuing a big opinion on the rights of aliens abroad or police shootings or extraterritorial jurisdiction, the quietly Court issued a per curiam slip opinion vacating the lower court’s ruling and remanding in the least exciting way possible.
When I wrote about this case last, I warned that the court might “punt like Ray Guy” or issue a very narrow ruling on Bivens grounds (I also suggested that the Court might also issue a big ruling on extraterritorial jurisdiction, so what do I know?). Well, that’s what they did. If you recall, in granting cert, the court added the question of whether plaintiff’s claims could be asserted under Bivens, even though the circuit court did not address that question below.
Today, the Court remanded the case back to the Court of Appeals. It reasoned that the Bivens question was an “antecedent” to the remaining (and more interesting) issues, yet the lower court did not have an opportunity to consider how the Supreme Court’s recent decision in Ziglar v. Abbasi may bear on the Bivens claim in this case.
This is most certainly a punt. Except for one tiny bit of substance (which I’ll get to in a second), this opinion did nothing but put the ball back in the lower court’s…court and instruct it to rule on Bivens this time around. This hurts the plaintiff’s chances, since Ziglar limited the availability of Bivens claims for plaintiffs.
There was, however, some substance to this opinion. In dealing with the Fifth Amendment claim, the Court of Appeals had held that the officer was entitled to qualified immunity because the Mexican teen had no connections to the U.S. and was not a U.S. citizen. However, this information regarding the teen was not actually known to the officer. Thus, because qualified immunity centers on the facts knowable to the defendant officer, and the officer did not know that the teen had no connections to the U.S., the lower court erred. However, all that earned the plaintiff was the ability to have his Fifth Amendment Bivens claim evaluated based on Ziglar too.
Justice Thomas briefly dissented, arguing that the Court should have just gone ahead and affirmed the lower court because the plaintiff had no Bivens claim. Justice Breyer, joined by Justice Ginsburg, dissented for an opposite reason: they held that the plaintiff did have valid constitutional claims, and they believed that the Court should have ruled as such and then remanded for consideration of the Bivens and qualified immunity issues. Breyer then appended to his opinion a 54-year-old drawing of the channel in question, as well a black and white photo from 1968 of President Johnson and Lady Byrd Johnson viewing the channel. For what its worth, the President is waiving to no one in particular, and the First Lady looks miserable.
This marks a disappointing end (for now, at least) to this case. It would have been quite interesting to see the Court square extraordinarily sympathetic facts with very thorny issues of immigration, police excessive force, and jurisdiction. However, resolving an interesting case that felt like a fun law school hypothetical was apparently not worth the potentially major doctrinal implications.
Wait, did I just call law school fun?