Correcting the Record in the <em>Hernandez</em> Briefing

As my friend Andrew Kent notes in his characteristically interesting post on the top-side briefing in Hernández v. Mesa (the cross-border shooting case in which the Supreme Court will hear oral argument on February 18), I'm co-counsel to the petitioners. I am, therefore, necessarily biased in my view of both the questions presented and the substance of the briefing to date. That said, I fear that Andrew's post creates three fairly significant misimpressions about the petitioners' arguments, the current state of the law, or both. Just in case folks take their cues from Andrew's post instead of the briefing itself, I thought it would be appropriate to respond (solely on my own behalf--and not that of the petitioners or their counsel) simply to clarify the record.

To make a long story short, the three questions the Court is set to answer are (1) whether formal or functional analysis should guide the applicability of the Fourth Amendment to the unique physical and legal context of a shooting across the United States' border into Mexico; (2) whether a federal officer can claim qualified immunity based upon facts (in this case, the decedent's non-U.S.-citizenship) unknown to him at the time of his allegedly unlawful conduct; and (3) whether a cause of action is available in such a case under Bivens (a question the Justices themselves added when they granted certiorari back in October). Needless to say, I have my own view about how these questions ought to be answered, and Andrew has his. But in reviewing the briefing to date, I think Andrew's post misstates the arguments and/or relevant precedents in three fairly significant ways:

I. The Petitioners Are Not Arguing for a Global Constitution

Dovetailing with his prior academic work, Andrew devotes a fair amount of his post to arguing against a functional approach to extraterritorial constitutional rights--and, especially, against any claim that this approach is consistent with Supreme Court decisions predating the Court's 2008 ruling in Boumediene v. Bush. More to the point, Andrew writes, "The core claim made by the Hernandez brief and supporting amici is that the functional, flexible, open-ended test for application of the Habeas Suspension Clause outside U.S. borders that was announced in Boumediene should govern all questions of the extraterritoriality of U.S. constitutional rights, overruling a bright-line sovereignty and citizenship test used in Verdugo (and for two centuries prior to that)." (emphasis added).

Frankly, that's just not accurate. The first question presented by the petitioners specifically frames the issue as whether the functional approach outlined in Boumediene (and Justice Kennedy's concurring opinion in Verdugo) applies "to a cross-border shooting . . . in an enclosed area patrolled by the United States." There is, quite obviously, a world of difference between recognizing a gray area in cross-border cases (especially where the "extraterritorial" conduct takes place on adjacent foreign soil over which the United States exercises almost plenary control) and arguing, as Andrew suggests the petitioners do, for applying Boumediene's functional approach to all questions of extraterritorial constitutional rights. As the petitioners' brief expressly notes on page 25, "This case addresses only the use of deadly force by U.S. Border Patrol agents in seizing individuals at and near the United States-Mexico border. It does not involve extraterritoriality of the Fourth Amendment more broadly." (emphasis added). Perhaps Andrew's view is that this is a distinction without a difference--that extraterritoriality is a binary on/off switch, and when any relevant fact arises on soil even mere feet outside de jure U.S. sovereignty, the Constitution switches off, at least for non-citizens lacking substantial voluntary connections to the United States. But the theory on which Hernandez is being litigated is that Boumediene recognizes that there is, and should be, a third, functional category for extraterritoriality--and that cross-border shootings like the one at issue here are at least as strong a candidate for such an approach as what was presented in Boumediene. Andrew may disagree with that theory (or with its application beyond the unique circumstances of the Suspension Clause), but he ought to at least describe it accurately.

II. The Petitioners are Arguing that National Security and Extraterritoriality are Not Special Factors Counseling Hesitation Here

Most of the rest of Andrew's post focuses on the question the Justices added--whether a cause of action should be available under Bivens. In a nutshell, Andrew argues that national security and extraterritoriality are both special factors counseling hesitation against recognition of a cause of action for damages, and he describes the petitioners' brief as focusing "on what it sees as the practical lack of any other remedy in this particular case." In fact, the petitioners' brief concedes that, as the Supreme Court explained in 2007, "Even in the absence of alternative remedies, a Bivens remedy is a subject of judgment: the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any special factors counseling hesitation." To that end, the brief devotes numerous pages to explaining why, without regard to alternative remedies, neither national security nor extraterritoriality are "special factors" counseling hesitation here. To the former,

Whether “national security” is a special factor that counsels hesitation is a context-specific inquiry that provides no basis to deny a Bivens remedy here. In this case, we are not challenging policy decisions in either the national security or immigration arenas. See U.S. Br. at 24, Ashcroft v. Abbasi (No. 15-1359) (“High-level policy decisions differ from the unauthorized actions of rogue officers in a way that bears directly on special-factors analysis.”); App. 93a (“Quite plainly, even though Agent Mesa is an immigration law enforcement officer, . . . this is not an immigration case.”). Nor does this call for any judicial assessment of, or interference with, “[t]he Department of Homeland Security and . . . U.S. Customs and Border Protection[’s] . . . primary mission of preventing terrorist attacks within the United States and securing the border.” U.S. BIO 20 (citing 6 U.S.C. §§ 111, 202). We argue only that a border patrol agent could not, without any justification, shoot petitioners’ fifteen-year-old son while he hid behind a pillar a few feet into Mexican soil. And the government does not point to specific policies, priorities, or threats that would be compromised by enforcing the Fourth Amendment’s bar on excessive force here. How could it? Existing border patrol regulations bar exactly the conduct in which Agent Mesa engaged.

Of course, national security could be (and certainly is) a special factor in other cases. But if a rogue border patrol agent's unjustified and unauthorized shooting of an unarmed 15-year-old boy implicates national security simply because the government says so, what doesn't? As for extraterritoriality, perhaps Andrew is borrowing from Judge Kavanaugh's concurrence in Meshal, which argued that the presumption against extraterritorial application of statutes should be even stronger when it comes to remedies for extraterritorial violations of the Constitution. But as the petitioners' brief argues at pp. 47-48, "the reasons that courts interpret statutes against that background presumption do not apply here." For starters, "the presumption 'avoid[s] the international discord that can result when U.S. law is applied to conduct in foreign countries.' But any 'international discord' in this case comes from the potential unavailability of civil remedies under U.S. law," as evidenced by the amicus briefs filed at the cert. stage and on the merits by the Mexican government--in support of the petitioners. Second, "the presumption 'reflects the more prosaic commonsense notion that Congress generally legislates with domestic concerns in mind.’ No similar notion applies to constitutional interpretation, where [the Supreme] Court is not simply acting as the agent of the legislature." Andrew nevertheless argues that Bivens remedies should be disfavored because of the potential floodgates that would open to claims by non-citizens overseas. Of course, that assertion, in turn, relies upon his mischaracterizations of both the petitioners' merits claim and of national security as a special factor. If the merits of the constitutional analysis really are limited to the unique context of uses of force at the border, and if national security can be a special factor in cases in which a damages remedy truly would interfere with high-level national security policymaking and execution, it's hard to see where all of the cases Andrew fears would come from.

Of course, those who believe Bivens was wrongly decided--or should be limited to its facts--will still likely lean against recognizing a damages remedy here. My point is simply that Andrew's breezy invocations of national security and extraterritoriality as special factors counseling hesitation (1) are specifically addressed, in detail, in petitioners' brief; and (2) don't really withstand scrutiny on the facts of this case.

III. It Really is "Bivens or Nothing"

Finally, Andrew closes by suggesting that "It is an exaggeration to say, as the Hernandez brief did, that without a Bivens suit there would be a 'legal no-man's land' in the cross-border context." Unfortunately, as the petitioners' and amici briefs make clear, each of Andrew's examples to the contrary are illusory. For example, holding, contra Andrew's analysis, that the Fourth Amendment applies, but declining to recognize a damages remedy (with an eye toward suits for prospective relief) would be pointless in the context of excessive force claims such as the one at issue in Hernandez; for obvious reasons, excessive force can only be judicially assessed after the fact. With regard to Andrew's nod to international human rights law, the United States takes the position both that the relevant treaties are non-self-executing and that they do not apply extraterritorially. Pointing to that body of a law as a means of ensuring that the border is not a "law-free zone" is, thus, more than a little ironic. And with respect to the Alien Tort Statute, as Andrew notes, the government would surely argue, as it did in Ali v. Rumsfeld, that even if it applied extraterritorially, the Westfall Act displaces the Alien Tort Statute (and precludes recovery) for torts committed by U.S. officers within the scope of their employment. Nor do criminal or foreign remedies help here; the U.S. government has already both declined to indict Agent Mesa and refused an extradition request by the Mexican government, and, as one of the amicus briefs makes clear, there are no meaningful remedies against Agent Mesa under Mexican law.

Andrew's invocation of the Westfall Act (and his closing paragraph, in which he concedes that "the Anglo-American tradition allowed tort suits against officials who exceeded their authority or otherwise acted unlawfully"), ironically highlights one of the real issues in Hernandez: From the Founding until the 1970s, the principal means of obtaining damages relief against federal officers for constitutional violations was under state law. But as Carlos Vázquez and I have explained at some length, the Westfall Act, enacted in 1988, has been misinterpreted as foreclosing such claims, and shoehorning all damages claims for constitutional violations by federal officers into Bivens. Thus, if one truly believes that there is ever a remedial imperative to ensure that the Constitution is enforced, cases like Hernandez truly do present a choice of "Bivens or nothing." Andrew closes by suggesting that this is a reason to choose nothing: "A win for Hernandez could hamstring U.S. surveillance against, say, the Kremlin or Iran's Revolutionary Guards; a common law tort victory for Hernandez would have simply resulted in a payment of money damages." But surveillance against the Kremlin or Iran's Revolutionary Guards both (1) surely would yield a different answer under the functional Fourth Amendment analysis at issue in Hernandez; and (2) in any event would just as surely be an example of a case in which "special factors" counsel hesitation against recognizing a Bivens remedy. By suggesting that the choice the Court faces in Hernandez is between those suits and "nothing," Andrew completely misses--and misstates--the thrust of the petitioners' argument.