Hernández v. Mesa (17-1678)

argument 17-1678

Hernández v. Mesa

Supreme Court of the United States 1h 1m 6 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the central Bivens issue raised in Hernandez v. Mesa?

John G. Roberts 0:00

We'll hear argument next in case seventeen sixteen seventy

Travis E. Vladeck 0:04

eight, Hernandez versus Mesa. Mr Vladick. Mr Chief Justice, may I please the court. When this case was first argued to this court two years ago, Counsel for Respondent and Counsel for the United States were both asked whether petitioners would have a Bivens remedy if Sergio Hernandez had been standing on US soil when he was shot and killed by respondent. Both said yes. The question before this court today is therefore whether a Biven's action is nevertheless foreclosed, because in this case Sergio was standing a few feet to the Mexican side of the border at the time he was shot. For two reasons, we believe that it isn't. First, the fortuity of where a victim is standing does not in fact trigger any of the special factors counsel and hesitation identified by respondent or the United States.

Travis E. Vladeck 0:49

Most importantly, it is difficult to see how foreign relations could be a special factor precluding a Bivens suit here if it wouldn't have precluded a Bivens claim had Sergio been standing just a few feet away. Moreover, the government's assertion that permitting petitioner suit would dramatically undermine US foreign relations and diplomacy is belied by the long history of successful tort claims against Federal law enforcement officers, including, as in the Apollon, cases in which the victim was a foreigner harmed on foreign soil, the court awarded damages, and the diplomatic sky did not fall. Nor does extraterritoriality cut against the Bibbins remedy here. Not only was respondents standing on US soil when he pulled the trigger, but he could not have known in that instant where the bullet would even land, let alone the nationality of anyone it might hit.

Travis E. Vladeck 1:38

Second and as importantly, for petitioners here it is bivens or nothing. Neither respondent nor the United States seriously disputes that the Westfall Act preempts the Texas tort remedy petitioners could otherwise have pursued. Neither has identified any other alternative remedy for the petitioners here, as opposed to other parties in other cases. All of this goes to why this court was right in Abbasi when it explained that there are powerful reasons to retain Bivens as a remedy for individual instances of law enforcement overreach, and it goes to why, even though Sergio was standing on Mexican soil when he was shot and killed, this case presents the exact kind of law enforcement overreach that Abbasi had in mind.

Travis E. Vladeck 2:19

I think Abbassi is a useful place to begin our analysis because in that case, not only did this court suggest that there were still important reasons to retain Bivens in law enforcement contexts, but this court itself actually preserved and retained one of the plaintiff's Bivens claims. This court returned to the district court rather than dismissing the uh prisoner abuse claim against the warden of the MDC. And we think that reflects Four of the reasons why retaining vivens in the law enforcement sphere makes sense. First, as this court said in the Bassi, it is difficult to contemplate other remedies when individual instances of law enforcement overreach are at play. In those contexts, a damages action after the fact will usually be the only possible legal recourse.

Travis E. Vladeck 3:03

It's going to be difficult to bring a claim in advance. Second, the deterrence effect, what this court has called the core purpose of Bivens, which is to deter individual officers, could quite easily be lost in the absence of remedies in the law enforcement context, unlike in a boss, where, as this court stressed, there were alternative remedies available to the plaintiffs. Third, the historical tradition that we note in our brief, where federal courts and state courts going all the way back to the founding routinely imposed tort damages against federal officers acting ultra virus without suggesting there were separation of powers obstacles to doing so, without suggesting that there was anything wrong with the federal courts providing a cause of action in those cases.

Travis E. Vladeck 3:47

As opposed to, I think, where the inquiry historically has focused, immunity.