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Damages

By: Derek Hawkins//April 8, 2020//

Damages

By: Derek Hawkins//April 8, 2020//

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United States Supreme Court

Case Name: Jesus C. Hernandez, et al., v. Jesus Mesa, Jr.,

Case No.: 17-1678

Focus: Damages

United States Border Patrol Agent Jesus Mesa, Jr., shot and killed Sergio Adrián Hernández Güereca, a 15-year-old Mexican national, in a tragic and disputed cross-border incident. Mesa was standing on U. S. soil when he fired the bullets that struck and killed Hernández, who was on Mexican soil, after having just run back across the border following entry onto U. S. territory. Agent Mesa contends that Hernández was part of an illegal border crossing attempt, while petitioners, Hernández’s parents, claim he was playing a game with his friends that involved running back and forth across the culvert separating El Paso, Texas, from Ciudad Juarez, Mexico. The shooting drew international attention, and the Department of Justice investigated, concluded that Agent Mesa had not violated Customs and Border Patrol policy or training, and declined to bring charges against him. The United States also denied Mexico’s request for Agent Mesa to be extradited to face criminal charges in Mexico. Petitioners sued for damages in U. S. District Court under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, alleging that Mesa violated Hernández’s Fourth and Fifth Amendment rights. The District Court dismissed their claims, and the United States Court of Appeals for the Fifth Circuit affirmed. After this Court vacated that decision and remanded for further consideration in light of Ziglar v. Abbasi, 582 U. S. ___, the Fifth Circuit again affirmed, refusing to recognize a Bivens claim for a cross-border shooting. Bivens’ holding does not extend to claims based on a cross-border shooting. The most important question is whether Congress or the courts should create a damages remedy. Here the answer is Congress. Congress’s failure to act does not compel the Court to step into its shoes.

Affirmed

Dissenting: GINSBURG, J., filed a dissenting opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined.

Concurring: THOMAS, J., filed a concurring opinion, in which GORSUCH, J., joined.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.

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