Sergio Adrián Hernández Güereca, a fifteen-year-old Mexican child, was playing with his friends in Mexico when he was shot in the face by a U.S. Border Patrol Agent standing in the United States. Sergio died on the concrete ground where he fell.
In Hernandez v. Mesa, Sergio’s family brought a federal lawsuit seeking to hold Agent Jesus Mesa, Jr. responsible for the death of their son. They alleged Agent Mesa had violated Sergio’s constitutional rights and based their claim on the Bivens doctrine. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court established a limited right to sue federal government officials for constitutional violations. Historically, damages remedies had long been recognized “for an invasion of personal interests in liberty.” The Court noted in Bivens that federal courts maintained a unique role in protecting the Bill of Rights. Damages remedies would serve that purpose by “deter[ring] individual federal officers from committing constitutional violations.” Since 1971, Bivens has allowed federal courts to acknowledge a cause of action against federal officials for violations of certain constitutional rights. Sergio’s family argued that Agent Mesa should be civilly liable under the Bivens doctrine for violating the Fourth and Fifth Amendments because he shot and killed Sergio without cause.
In a 5–4 decision, the Supreme Court rejected the lawsuit, holding the Constitution provided Sergio’s family no such remedy. Given the Roberts Court’s skepticism of the Bivens doctrine, the decision is not surprising. It is consistent with a line of Supreme Court cases that has effectively ended Bivens remedies for constitutional violations. Indeed, it is a reflection of the Court’s continued abdication of the judiciary’s role as an adjudicator of rights and a coequal branch of government.
This Essay examines the Hernandez decision and critiques the Court’s expanding theory of judicial abdication, an approach with profound implications for civil rights and the future of the judiciary. While Hernandez involved a cross-border shooting, the Court’s reasoning extends to all facets of civil litigation. Accordingly, this Essay proposes a new theory of judicial engagement that would empower federal courts to grant relief for constitutional claims against federal officials. It is a theory founded in extant constitutional jurisprudence that the Court has used for over a century to apply the Bill of Rights to state and local governments—an approach that examines whether a constitutional right is fundamental to our scheme of ordered liberty and has deep roots in our history and tradition. This Essay proposes that a similar methodology be used to assess whether a civil remedy exists for violations of constitutional rights by federal officials.
William J. Aceves, Hernandez, Bivens, and the Supreme Court’s Expanding Theory of Judicial Abdication, 118 MICH. L. REV. ONLINE 1 (2020).