(Slip Opinion) Cite as: 582 U. S. ____ (2017) 1
Per Curiam
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
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SUPREME COURT OF THE UNITED STATES
_________________
No. 15–118
_________________
JESUS C. HERNANDEZ, ET AL., PETITIONERS v.
JESUS MESA, JR., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 26, 2017]
PER CURIAM.
This case involves a tragic cross-border incident in
which a United States Border Patrol agent standing on
United States soil shot and killed a Mexican national
standing on Mexican soil. The three questions presented
concern whether the parents of the victim of that shooting
may assert claims for damages against the agent under
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S.
388 (1971); whether the shooting violated the victim’s
Fourth Amendment rights; and whether the agent is
entitled to qualified immunity on a claim that the shooting
violated the victim’s Fifth Amendment rights.
Because this case was resolved on a motion to dismiss,
the Court accepts the allegations in the complaint as true
for purposes of this opinion. See Wood v. Moss, 572 U. S.
___, ___ (2014) (slip op., at 12). On June 7, 2010, Sergio
Adrián Hernández Güereca, a 15-year-old Mexican na
tional, was with a group of friends in the cement culvert
that separates El Paso, Texas, from Ciudad Juarez, Mex-
ico. Now all but dry, the culvert once contained the waters
of the Rio Grande River. The international boundary runs
2 HERNANDEZ v. MESA
Per Curiam
down the middle of the culvert, and at the top of the em
bankment on the United States side is a fence. According
to the complaint, Hernández and his friends were playing
a game in which they ran up the embankment on the
United States side, touched the fence, and then ran back
down. At some point, Border Patrol Agent Jesus Mesa,
Jr., arrived on the scene by bicycle and detained one of
Hernández’s friends in United States territory as the
friend ran down the embankment. Hernández ran across
the international boundary into Mexican territory and
stood by a pillar that supports a railroad bridge spanning
the culvert. While in United States territory, Mesa then
fired at least two shots across the border at Hernández.
One shot struck Hernández in the face and killed him.
According to the complaint, Hernández was unarmed and
unthreatening at the time.
The Department of Justice investigated the incident.
The Department concluded that the shooting “occurred
while smugglers attempting an illegal border crossing
hurled rocks from close range at a [Customs and Border
Patrol] agent who was attempting to detain a suspect.”
Dept. of Justice, Office of Public Affairs, Federal Officials
Close Investigation Into the Death of Sergio Hernandez-
Guereca (Apr. 27, 2012), online at http://www.justice.
gov/opa/pr/federal-officials-close-investigation-death-sergio
hernandez-guereca (as last visited June 23, 2017). “[O]n
these particular facts,” the Department determined, “the
agent did not act inconsistently with [Customs and Border
Patrol] policy or training regarding use of force.” Ibid.
The Department also declined to bring federal civil rights
charges against Mesa. In the Department’s view, there
was insufficient evidence that Mesa “acted willfully and
with the deliberate and specific intent to do something the
law forbids,” and, in any event, Hernández “was neither
within the borders of the United States nor present on
U. S. property, as required for jurisdiction to exist under
Cite as: 582 U. S. ____ (2017) 3
Per Curiam
the applicable federal civil rights statute.” Ibid. The
Department expressed regret for the loss of life in the
incident and pledged “to work with the Mexican govern
ment within existing mechanisms and agreements to
prevent future incidents.” Ibid.
Petitioners—Hernández’s parents—brought suit. Among
other claims, petitioners brought claims against Mesa for
damages under Bivens, alleging that Mesa violated Her
nández’s rights under the Fourth and Fifth Amendments.
The United States District Court for the Western District
of Texas granted Mesa’s motion to dismiss. A panel of the
Court of Appeals for the Fifth Circuit affirmed in part and
reversed in part. The panel held that Hernández lacked
any Fourth Amendment rights under the circumstances,
but that the shooting violated his Fifth Amendment
rights. Hernandez v. United States, 757 F. 3d 249, 267,
272 (2014); id., at 280–281 (Dennis, J., concurring in part
and concurring in judgment); id., at 281 (DeMoss, J.,
concurring in part and dissenting in part). The panel also
found “no reason to hesitate in extending Bivens to this
new context.” Id., at 275. And the panel held that Mesa
was not entitled to qualified immunity, concluding that
“[n]o reasonable officer would have understood Agent
Mesa’s alleged conduct to be lawful.” Id., at 279. Judge
DeMoss dissented in part, arguing that Hernández lacked
any Fifth Amendment rights under the circumstances.
Id., at 281–282.
On rehearing en banc, the Court of Appeals unanimously
affirmed the District Court’s dismissal of petitioners’
claims against Mesa. The en banc Court of Appeals first
held that petitioners had failed to state a claim for a viola
tion of the Fourth Amendment because Hernández was “a
Mexican citizen who had no ‘significant voluntary connec
tion’ to the United States” and “was on Mexican soil at the
time he was shot.” Hernandez v. United States, 785 F. 3d
117, 119 (CA5 2015) (per curiam) (quoting United States v.
4 HERNANDEZ v. MESA
Per Curiam
Verdugo-Urquidez, 494 U. S. 259, 271 (1990)). As to peti
tioners’ claim under the Fifth Amendment, the en banc
Court of Appeals was “somewhat divided on the question
of whether Agent Mesa’s conduct violated the Fifth
Amendment,” but was “unanimous” in concluding that
Mesa was entitled to qualified immunity. 785 F. 3d, at
120. The en banc Court of Appeals explained that “[n]o
case law in 2010, when this episode occurred, reasonably
warned Agent Mesa” that “the general prohibition of
excessive force applies where the person injured by a U. S.
official standing on U. S. soil is an alien who had no signif
icant voluntary connection to, and was not in, the United
States when the incident occurred.” Ibid. Because the en
banc Court of Appeals resolved petitioners’ claims on other
grounds, it “did not consider whether, even if a constitu
tional claim had been stated, a tort remedy should be
crafted under Bivens.” Id., at 121, n. 1 (Jones, J., concur
ring). Ten judges filed or joined five separate concurring
opinions. Id., at 121–143.
This Court granted certiorari. 580 U. S. ___ (2016). The
Court now vacates the judgment of the Court of Appeals
and remands for further proceedings.
The Court turns first to the Bivens question, which is
“antecedent” to the other questions presented. Wood, 572
U. S., at ___ (slip op., at 11). In Bivens, this Court “recog
nized for the first time an implied right of action for dam
ages against federal officers alleged to have violated a
citizen’s constitutional rights.” Correctional Services Corp.
v. Malesko, 534 U. S. 61, 66 (2001). A Bivens remedy is
not available, however, where there are “ ‘special factors
counselling hesitation in the absence of affirmative action
by Congress.’ ” Carlson v. Green, 446 U. S. 14, 18 (1980)
(quoting Bivens, 403 U. S., at 396). In the decision recently
announced in Ziglar v. Abbasi, ante, p. ___, this Court
has clarified what constitutes a “special facto[r] counsel-
ling hesitation.” See ante, at 12–14, 17–23. “[T]he in
Cite as: 582 U. S. ____ (2017) 5
Per Curiam
quiry,” the Court explains, “must concentrate on whether
the Judiciary is well suited, absent congressional action or
instruction, to consider and weigh the costs and benefits of
allowing a damages action to proceed.” Ante, at 12.
The Court of Appeals here, of course, has not had the
opportunity to consider how the reasoning and analysis in
Abbasi may bear on this case. And the parties have not
had the opportunity to brief and argue its significance. In
these circumstances, it is appropriate for the Court of
Appeals, rather than this Court, to address the Bivens
question in the first instance. This Court, after all, is one
“ ‘of review, not of first view.’ ” Expressions Hair Design v.
Schneiderman, 581 U. S. ___, ___ (2017) (slip op., at 10)
(quoting Nautilus, Inc. v. Biosig Instruments, Inc., 572
U. S. ___, ___ (2014) (slip op., at 14)).
With respect to petitioners’ Fourth Amendment claim,
the en banc Court of Appeals found it unnecessary to
address the Bivens question because it concluded that
Hernández lacked any Fourth Amendment rights under
the circumstances. This approach—disposing of a Bivens
claim by resolving the constitutional question, while as
suming the existence of a Bivens remedy—is appropriate
in many cases. This Court has taken that approach on
occasion. See, e.g., Wood, supra, at ___ (slip op., at 11).
The Fourth Amendment question in this case, however, is
sensitive and may have consequences that are far reach
ing. It would be imprudent for this Court to resolve that
issue when, in light of the intervening guidance provided
in Abbasi, doing so may be unnecessary to resolve this
particular case.
With respect to petitioners’ Fifth Amendment claim, the
en banc Court of Appeals found it unnecessary to address
the Bivens question because it held that Mesa was entitled
to qualified immunity. In reaching that conclusion, the en
banc Court of Appeals relied on the fact that Hernández
was “an alien who had no significant voluntary connection
6 HERNANDEZ v. MESA
Per Curiam
to . . . the United States.” 785 F. 3d, at 120. It is undis
puted, however, that Hernández’s nationality and the
extent of his ties to the United States were unknown to
Mesa at the time of the shooting. The en banc Court of
Appeals therefore erred in granting qualified immunity
based on those facts.
“The doctrine of qualified immunity shields officials
from civil liability so long as their conduct ‘does not violate
clearly established . . . constitutional rights of which a
reasonable person would have known.’ ” Mullenix v. Luna,
577 U. S. ___, ___ (2015) (per curiam) (slip op., at 4–5)
(quoting Pearson v. Callahan, 555 U. S. 223, 231 (2009)).
The “dispositive inquiry in determining whether a right is
clearly established is whether it would be clear to a rea
sonable officer that his conduct was unlawful in the situa
tion he confronted.” Saucier v. Katz, 533 U. S. 194, 202
(2001). The qualified immunity analysis thus is limited to
“the facts that were knowable to the defendant officers” at
the time they engaged in the conduct in question. White v.
Pauly, 580 U. S. ___, ___ (2017) (per curiam) (slip op., at
3). Facts an officer learns after the incident ends—
whether those facts would support granting immunity or
denying it—are not relevant.
Mesa and the Government contend that Mesa is entitled
to qualified immunity even if Mesa was uncertain about
Hernández’s nationality and his ties to the United States
at the time of the shooting. The Government also argues
that, in any event, petitioners’ claim is cognizable only
under the Fourth Amendment, and not under the Fifth
Amendment. This Court declines to address these argu
ments in the first instance. The Court of Appeals may
address them, if necessary, on remand.
The facts alleged in the complaint depict a disturbing
incident resulting in a heartbreaking loss of life. Whether
petitioners may recover damages for that loss in this suit
depends on questions that are best answered by the Court
Cite as: 582 U. S. ____ (2017) 7
Per Curiam
of Appeals in the first instance.
The judgment of the Court of Appeals is vacated, and
the case is remanded for further proceedings consistent
with this opinion.
It is so ordered.
JUSTICE GORSUCH took no part in the consideration or
decision of this case.
Cite as: 582 U. S. ____ (2017) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–118
_________________
JESUS C. HERNANDEZ, ET AL., PETITIONERS v.
JESUS MESA, JR., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 26, 2017]
JUSTICE THOMAS, dissenting.
When we granted certiorari in this case, we directed the
parties to address, in addition to the questions presented
by petitioners, “[w]hether the claim in this case may be
asserted under Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U. S. 388 (1971).” 580 U. S. ___ (2016). I
would answer that question, rather than remand for the
Court of Appeals to do so. I continue to adhere to the view
that “Bivens and its progeny” should be limited “to the
precise circumstances that they involved.” Ziglar v. Ab-
basi, ante, at 2 (THOMAS, J., concurring in part and con-
curring in judgment) (internal quotation marks omitted).
This case arises in circumstances that are meaningfully
different from those at issue in Bivens and its progeny.
Most notably, this case involves cross-border conduct, and
those cases did not. I would decline to extend Bivens and
would affirm the judgment of the Court of Appeals on that
basis.
Cite as: 582 U. S. ____ (2017) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–118
_________________
JESUS C. HERNANDEZ, ET AL., PETITIONERS v.
JESUS MESA, JR., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 26, 2017]
JUSTICE BREYER, with whom JUSTICE GINSBURG joins,
dissenting.
The parents of Sergio Adrián Hernández Güereca
brought this constitutional tort action against a United
States Border Patrol agent, Jesus Mesa, Jr. They claim
that Mesa violated their son’s constitutional rights when
Mesa shot and killed him on June 7, 2010. Hernández and
some of his friends had been running back and forth
across a Rio Grande River culvert that straddles the bor
der between the United States and Mexico. When Mesa
shot him, Hernández had returned to, and was on, the
Mexican side of the culvert.
The Court of Appeals, affirming the District Court, held
(among other things) that Hernández had no Fourth
Amendment rights because he was not a citizen of the
United States, he was “on Mexican soil at the time he was
shot,” and he “had no ‘significant voluntary connection’ to
the United States. ” Hernandez v. United States, 785 F. 3d
117, 119 (2015) (per curiam) (quoting United States v.
Verdugo-Urquidez, 494 U. S. 259, 271 (1990)). I would
reverse the Court of Appeals’ Fourth Amendment holding.
And, in my view, that reversal would ordinarily bring with
it the right to bring an action for damages under Bivens v.
Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971).
See Wood v. Moss, 572 U. S. ___, ___ (2014) (slip op., at 11)
2 HERNANDEZ v. MESA
BREYER, J., dissenting
(Bivens actions lie for Fourth Amendment violations);
Tennessee v. Garner, 471 U. S. 1, 11 (1985) (officer’s appli
cation of lethal force when there is no immediate threat to
self or others violates the Fourth Amendment). See also
Ziglar v. Abbasi, ante, p. 1 (BREYER, J., dissenting).
I recognize that Hernández was on the Mexican side of
the culvert when he was shot. But, we have written in a
case involving the suspension of habeas corpus that “de
jure sovereignty” is not and never has been “the only
relevant consideration in determining the geographic
reach of the Constitution.” Boumediene v. Bush, 553 U. S.
723, 764 (2008). We have added that our precedents make
clear that “questions of extraterritoriality turn on objec
tive factors and practical concerns, not formalism.” Ibid.;
see also id., at 759–762. Those factors and concerns here
convince me that Hernández was protected by the Fourth
Amendment.
First, the defendant is a federal officer. He knowingly
shot from United States territory into the culvert. He did
not know at the time whether he was shooting at a citizen
of the United States or Mexico, nor has he asserted that he
knew on which side of the boundary line the bullet would
land.
Second, the culvert itself has special border-related
physical features. It does not itself contain any physical
features of a border. Rather, fences and border crossing
posts are not in the culvert itself but lie on either side.
Those of Mexico are on the southern side of the culvert;
those of the United States are on the northern side. The
culvert (where the shooting took place) lies between the
two fences, and consists of a concrete-lined empty space
that is typically 270 feet wide.
Third, history makes clear that nontechnically speaking,
the culvert is the border; and more technically speaking, it
is at the least a special border-related area (sometimes
known as a “limitrophe” area, see infra, at 4). Originally,
Cite as: 582 U. S. ____ (2017) 3
BREYER, J., dissenting
the 1848 Treaty of Guadalupe Hidalgo provided that the
boundary should run “up the middle” of the Rio Grande
River “following the deepest channel.” See Art. V, July 4,
1848, 9 Stat. 926. It also provided that “navigation . . .
shall be free . . . to the vessels and citizens of both coun
tries.” Art. VII, id., at 928. Subsequently the river
jumped its banks, setting a new course, and provoking
serious disputes about the border’s location. See S. Liss, A
Century of Disagreement: The Chamizal Conflict 1864–
1964, p. 15 (1965) (the river’s “ravages . . . irreparably
destroyed any semblance of a discernable United States
boundary line in the Ciudad Juarez-El Paso area”). In the
1960’s, however, the United States and Mexico negotiated
a new boundary. The two nations working together would
“relocat[e]” the river channel. Convention for the Solution
of the Problem of the Chamizal, Art. 2, Aug. 29, 1963, 15
U. S. T. 23, T. I. A. S. No. 5515 (Chamizal Convention).
They would jointly bear the costs of doing so; and they
would charge a bilateral commission with “relocation of
the river channel . . . and the maintenance, preservation
and improvement of the new channel.” Art. 9, id., at 26.
When final construction of the new channel concluded,
President Johnson visited the site to celebrate the “chan
nels between men, bridges between cultures” created
by the countries’ joint effort. Kramer, A Border Crosses,
The New Yorker, Sept. 20, 2014, online at http://www.
newyorker.com / news / news - desk / moving-mexican - border
(all internet materials as last visited June 23, 2017); see
also Appendix, fig. 2, infra (photograph of President and
Mrs. Johnson touring the culvert). That “channel” is the
culvert now before us.
Fourth, a jointly organized international boundary
commission built, and now administers, the culvert. Once
created, the Commission arranged for surveys, acquired
rights of way, and built and paved the massive culvert
structure. See Appendix, fig. 1, infra (typical cross-section
4 HERNANDEZ v. MESA
BREYER, J., dissenting
of the proposed concrete “culvert”); see also International
Boundary and Water Commission, United States and
Mexico, Preliminary Plan (July 25, 1963), Annex to
Chamizal Convention, 15 U. S. T., following p. 36. The
United States contributed approximately $45 million of
the total cost. See Compliance With Convention on the
Chamizal, S. Rep. No. 868, 88th Cong., 2d Sess., 2 (1963);
Act To Facilitate Compliance With the Convention Be
tween United States and United Mexican States, §8, 78
Stat. 186. The United States and Mexico have jointly
agreed to maintain the Rio Grande and jointly to maintain
the “limitrophe” areas. Treaty To Resolve Pending
Boundary Differences and Maintain the Rio Grande and
Colorado River as the International Boundary, Art. IV,
Nov. 23, 1970, 23 U. S. T. 390, T. I. A. S. No. 7313 (Rio
Grande and Colorado River Treaty). Today an Interna
tional Boundary and Water Commission, with representa
tives of both nations, exercises its “jurisdiction” over “limi
trophe parts of the Rio Grande.” Treaty of Feb. 3, 1944,
Art. 2, 59 Stat. 1224.
Fifth, international law recognizes special duties and
obligations that nations may have in respect to “limi
trophe” areas. Traditionally, boundaries consisted of
rivers, mountain ranges, and other areas that themselves
had depth as well as length. Lord Curzon of Kedleston,
Frontiers 12–13 (2d ed. 1908). It was not until the late
19th century that effective national boundaries came to
consist of an engineer’s “imaginary line,” perhaps thou
sands of miles long, but having “no width.” Reeves, Inter
national Boundaries, 38 Am. J. Int’l L. 533, 544 (1944); see
also 1 Oppenheim’s International Law 661, n. 1 (R. Jen
nings & A. Watts eds., 9th ed. 1992). Modern precision
may help avoid conflicts among nations, see, e.g., Rio
Grande and Colorado River Treaty, preamble, 23 U. S. T.,
at 373, but it has also produced boundary areas—of the
sort we have described—which are “ ‘subject to a special
Cite as: 582 U. S. ____ (2017) 5
BREYER, J., dissenting
legal, political and economic regime of internal and inter
national law,’ ” Andrassy, Les Relations Internationales de
Voisinage, in The Hague Academy of Int’l Law, 1951
Recuiel des Cours 131 (quoting Paul de Lapradelle, La
Frontiere 14 (1928)). Those areas are subject to a special
obligation of co-operation and good neighborliness, V.
Lowe, International Law 151 (2007) (describing the “re
gime of voisinage,” which includes “jointly administered
infrastructure facilities . . . co-operation between neighbor
ing police forces . . . bilingual road signs, . . . shared access
to common resources,” and the like); cf. United Nations
Convention on the Law of the Sea, Art. 111(8), Dec. 10,
1982, 1833 U. N. T. S. 396 (requiring compensation for
loss arising from the erroneous exercise of a sovereign’s
right of hot pursuit), as well as express duties of joint
administration that adjoining states undertake by treaty.
Sixth, not to apply the Fourth Amendment to the culvert
would produce serious anomalies. Cf. Verdugo-Urquidez,
494 U. S., at 278 (KENNEDY, J., concurring). The Court of
Appeals’ approach creates a protective difference depend
ing upon whether Hernández had been hit just before or
just after he crossed an imaginary mathematical border
line running through the culvert’s middle. But nothing
else would have changed. The behavior of the United
States Border Patrol agent, along with every other rele
vant feature of this case, would have remained the same.
Given the near irrelevance of that midculvert line (as
compared with the rest of the culvert) for most border-
related purposes, as well as almost any other purpose,
that result would seem anomalous.
Moreover, the anomalies would multiply. Numerous
bridges span the culvert, linking El Paso and Ciudad
Juarez. See Chamizal Convention, Arts. 8–10, 15 U. S. T.,
at 25–26. “Across this boundary thousands of Americans
and Mexicans pass daily, as casually as one living inland
crosses a county line.” Liss, supra, at 4; Semuels, Cross
6 HERNANDEZ v. MESA
BREYER, J., dissenting
ing the Mexican-American Border, Every Day, The Atlan
tic, Jan. 25, 2016, online at https://www.theatlantic.com/
business/archive/2016 /01 /crossing-the-mexican-american
border-every-day/426678/; Brief for Border Scholars as
Amici Curiae 21–22 (Fifty-five percent of households in
the sister cities cross the border to comparison shop for
everyday goods and Mexican shoppers spend $445 million
each year in El Paso businesses). It does not make much
sense to distinguish for Fourth Amendment purposes
among these many thousands of individuals on the basis
of an invisible line of which none of them is aware.
These six sets of considerations taken together provide
more than enough reason for treating the entire culvert as
having sufficient involvement with, and connection to, the
United States to subject the culvert to Fourth Amendment
protections. I would consequently conclude that the
Fourth Amendment applies.
Finally, I note that neither court below reached the
question whether Bivens applies to this case, likely be
cause Mesa did not move to dismiss on that basis. I would
decide the Fourth Amendment question before us and
remand the case for consideration of the Bivens and quali
fied immunity questions. See Ziglar v. Abbasi, ante, p. 1;
but see ante, p. 1 (BREYER, J., dissenting).
For these reasons, with respect, I dissent.
Cite as: 582 U. S. ____ (2017)
7
BREYER
Appendix , J., dissenting
to opinion of BREYER, J.
APPENDIX
Figure 1. International Boundary and Water Commis
sion, United States and Mexico, Relocation of Rio Grande,
El Paso, Texas–Ciudad Juarez, Chihuahua, Preliminary
Plan (July 25, 1963), Annex to Chamizal Convention, 15
U. S. T., following p. 36, T. I. A. S. No. 5515.
Figure 2. President Lyndon Johnson and Mrs. Lady Bird
Johnson view the new channel. Associated Press, Dec. 13,
1968.