In its term two years ago, the U.S. Supreme Court considered two cases involving suits for allegedly wrongful uses of force against noncitizens. Back in the 1970s, the Court had created civil remedies for constitutional violations by federal government officers, but later cases have uniformly declined to extend that line to new contexts.
Ziglar v. Abbasi, No. 15-1358, declined to extend the Bivens line to the case of aliens detained in New York on suspicion of terrorism. The Court decided not to decide this issue in the second case, that of a border patrol agent who shot a teenage boy across the border. The agent was in El Paso, Texas, and the boy and others with him were in Juarez, Mexico. That case was Hernandez v. Mesa, No. 15-118. The Supreme Court remanded the case to the Fifth Circuit Court of Appeals to reconsider the Bivens issue in light of Abbasi.
It did not seem like a hard case on remand, given Abbasi's strict approach to extending Bivens and its endorsement of leaving issues involving foreign affairs to the elected branches. Sure enough, the Fifth decided 13-2 in favor of Agent Mesa.
Today the Court asked for the views of the Solicitor General. That makes sense. It presently only has the brief of Agent Mesa's private counsel in opposition to the certiorari petition, and the interest of the government in foreign affairs is an important factor under Abbasi.
CJLF filed an amicus brief in support of Agent Mesa the first time, and we probably will again if the Court grants certiorari. They shouldn't, though. The Fifth Circuit opinion is correct. With Bivens, as with many dubious opinions of the 60s and 70s, the Court does not necessarily need to overrule it, but it should freeze it in place and not extend it.
Here is the Summary of Argument from our brief, by Kym Stapleton, on the first round:
Judicially created implied causes of action for damages arising directly under the Constitution are a relic of the past. Thirty-seven years of this Court's precedents dictate that Bivens should be confined to its "precise circumstances." This case falls outside of Bivens' narrow scope because it involves a claim of undue force stemming from an act that occurred on foreign soil against a noncitizen with no connection to the United States. Creating a new implied cause of action is not an "automatic entitlement," and this Court has consistently refused to extend Bivens liability to new contexts or new categories of defendants.Federal tort remedies are created by Congress, not the judiciary. Congress has not created a remedy for cross-border shootings by federal officials. Bedrock principles of separation of powers dictate that it is not within the purview of the judicial branch to create a cause of action that implicates foreign policy where one does not otherwise exist.Special factors counsel against commissioning a new cause of action in the circumstances presented by this case. Congress, not the judiciary, is the proper political branch to decide if noncitizens can recover damages for tortuous government conduct occurring in a foreign country.
Our brief was written before the Abbasi decision, but that is largely what Abbasi says. Does the Court need to take this case up to say it again? I don't think so.
The harder the Border agents resist the invaders,
the safer Americans will be from the following
[all reported 23-30 Sep].
1) Deported Illegal Alien Sentenced to 50 Years for Killing Beloved
Football Coach, Father of Six 30 Sep 2018
2) ICE Arrests 40 Illegal Aliens in New England, Including Guatemalan
Accused of Strangling Pregnant Woman 28 Sep 2018
3) Vast majority of Iowans Blame Employers for Hiring Illegal Aliens After
Mollie Tibbetts Murder, a new poll reveals 28 Sep 2018
4) Illegal Alien Accused of Murdering NJ Girl Entered U.S. as
‘Unaccompanied Minor’ 28 Sep 2018
5) Sanctuary State California: Six-Time Deported Illegal Alien Accused of
Killing Three Men 26 Sep 2018
6) Source: Illegal Alien Accused of Murdering Mass. Boat Crew Mate Is
a DACA Recipient 26 Sep 2018
7) Five-Times-Deported Illegal Alien Gets Life in Prison for Raping,
Beating Women 25 Sep 2018
8) Twice-Deported Illegal Alien Sentenced to 16 Years for Killing NFL
Linebacker 23 Sep 2018
~ https://www.breitbart.com/immigration/