Hernandez v. Mesa

(1) Whether, when plaintiffs plausibly allege that a rogue federal law enforcement officer violated clearly established fourth and fifth amendment rights for which there is no alternative legal remedy, the federal courts can and should recognize a damages claim under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971) and (2) if not, whether the Westfall Act violates the Due Process Clause of the Fifth Amendment insofar as it preempts state-law tort suits for damages against rogue federal law enforcement officers acting within the scope of their employment for which there is no alternative legal remedy

Petitioner’s son was playing a game with his friends in a cement culvert which separates El Paso, Texas from Ciudad Juarez, Mexico when he was shot and killed by Respondent. Appellant’s son was standing in Mexican territory and Respondent was in U.S. Territory. On remand from this Court’s decision in Hernandez v. Mesa a majority of the Fifth Circuit denied existence of a cause of action under Bivens when a rogue federal officer violates clearly established constitutional rights for which there is no other legal remedy. Petitioner argues that the Fifth Circuit relied on reasoning inconsistent with Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) and Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971) when it stated the circumstances of Petitioner's complaint are so unlike prior excessive force claims that any underlying constitutional rights have not been clearly established. The Supreme Court granted certiorari to determine (1) whether, when plaintiffs plausibly allege that a rogue federal law enforcement officer violated clearly established fourth and fifth amendment rights for which there is no alternative legal remedy, the federal courts can and should recognize a damages claim under Bivens and (2) if not, whether the Westfall Act violates the Due Process Clause of the Fifth Amendment insofar as it preempts state-law tort suits for damages against rogue federal law enforcement officers acting within the scope of their employment for which there is no alternative legal remedy. Petitioner contends that the misapplication of Abbasi would have the effect of limiting Bivens recovery to only the explicit fact pattern therin, which would incite serious constitutional questions. Petitioner contends that the Bivens judge-made remedies should be available for constitutional violations by federal officers where the plaintiffs have no other legal remedy.