Say goodbye to Bivens claims

You probably know about Section 1983, the federal civil rights statute that allows you to bring lawsuits over constitutional violations against state and local officials. There is no federal counterpart, however. But in 1971, the Supreme Court issued the Bivens decision, holding that the Constitution recognizes an implied civil rights claim against federal officials in certain instances. Not all cases, but certain cases. As it happens, the Court has only recognized three claims under Bivens over the years, and it mostly takes on Bivens cases to repeatedly tell us that these claims are disfavored and that most of them will fail. That is what happened here.

The case is Hernandez v. Mesa, a Supreme Court ruling issued on February 25. The plaintiff's son was shot and killed by a U.S. border patrol agent. Jesus Mesa, Jr., a 15 year-old Mexican national, was shot on the Mexican side of the border after having run back across the border. The Supreme Court holds that mom has no case under Bivens. The Court determines if you can sue under Bivens by applying a two-part test: (1) does the case involve a "new context" or involve a "new category of defendants" and (2) are there "special factors that counsel hesitation" against recognizing a new Bivens claim. Since the Court has only three times recognized Bivens claims (false arrest against federal agents under the Fourth Amendment, sex discrimination under the Fifth Amendment, and failure to provide adequate medical treatment for inmates under the Eighth Amendment), this test is stacked against new claims.

The Court says there is no Bivens claim here because it has never recognized such a claim before involving border shootings by federal agents. That "new context" means the Court will not extend Bivens to this case. And, since the case involves foreign relations, the Court is hesitant to recognize such a claim. The foreign relations part of the analysis draws from the different views the U.S. and Mexican governments have on the propriety of the shooting. Mexico wants the agent expedited, and the U.S. will not do so. The Court reasons:

Both the United States and Mexico have legitimate and important interests that may be affected by the way in which this matter is handled. The United States has an interest in ensuring that agents assigned the difficult and important task of policing the border are held to standards and judged by procedures that satisfy United States law and do not undermine the agents’ effectiveness and morale. Mexico has an interest in exercising sovereignty over its territory and in protecting and obtaining justice for its nationals. It is not our task to arbitrate between them.  

This is a 5-4 ruling, with Justice Ginsburg dissenting on behalf of the four Democratic appointees. What makes this case notable is that it is clear that the Court in the future will probably do away with Bivens claims altogether. Justices Thomas and Gorsuch state in their concurrences that Bivens was wrongly decided and "the time has come to consider discarding the Bivens doctrine altogether. The foundation for Bivens—the practice of creating implied causes of action in the statutory context—has already been abandoned. And the Court has consistently refused to extend the Bivens doctrine for nearly 40 years, even going so far as to suggest that Bivens and its progeny were wrongly decided."