U.S. Customs and Border Protection is out of control. Although it is a civilian law enforcement agency, CBP is increasingly militarized and quick to use lethal force against any perceived threat—including unarmed civilians who pose no real danger. The agency has consistently failed to properly screen and train applicants or to investigate and punish agents who violate the law. Its tolerance for brutality leaves CBP’s victims with just one hope for recovery: a civil suit brought seeking damages for an agent’s lawless actions.
On Tuesday, the Supreme Court heard a case that could sharply limit victims’ ability to obtain even that limited restitution. The conservative justices appear poised to lock these individuals out of court, depriving them of damages even when they suffered horrific, illegal violence at the hands of CBP. Perversely, these justices seem to fear limiting agents’ ability to use unnecessary force. Only Justice Sonia Sotomayor was willing to say out loud the disturbing fact at the heart of the case: CBP believes it answers to no one—and if the Supreme Court doesn’t rein it in, no one else will.
Tuesday’s case, Hernández v. Mesa, revolves around an appalling cross-border shooting. In 2010, a 15-year-old Mexican teenager named Sergio Hernández was playing with his friends in Mexico, just across from the U.S. border. A CBP officer named Jesus Mesa, standing on the American side of the border, shot Hernández in the face, killing him. The teen had no weapon and presented no threat to anyone.
After President Barack Obama’s Department of Justice declined to charge Mesa, Hernández’s parents filed a lawsuit against the agent. They argued that he had violated their son’s Fourth and Fifth Amendment rights by taking his life through excessive force. Congress has not expressly authorized civil rights lawsuits against federal law enforcement agents. But the Supreme Court has permitted these suits, called Bivens claims, recognizing that the Constitution creates an implied right to recovery when federal agents run afoul of its protections. At the same time, the court has rejected Bivens claims when they present “special factors counselling hesitation.” The question in Hernández is whether a cross-border shooting presents these “special factors.”
Mesa, now supported by President Donald Trump’s Department of Justice, argues that the case implicates such factors, most notably “national security” and “foreign affairs.” This claim, as Justice Ruth Bader Ginsburg noted, makes little sense. “Here, we have a rogue officer acting in violation of the agency’s own instruction, using excessive force to kill a child at play,” Ginsburg told Randolph Ortega, arguing on Mesa’s behalf. “How does that call into question any foreign policy or national security policy?”
“Well, it would create a chilling effect as to the Border Patrol agents in conducting their day-to-day activities,” Ortega said. Justice Sonia Sotomayor looked visibly startled by this response. “What makes it chilling,” she asked, “to tell a Border Patrol agent, ‘Don’t shoot indiscriminately at children standing a few feet from the border?’ ” Sotomayor also wondered if Ortega’s rationale would insulate agents “if the shooting happened in our own land.” After all, wouldn’t penalizing an agent who shot an unarmed child inside of the border have the same “chilling effect”?
Justices Elena Kagan and Stephen Breyer picked up on this problem when Deputy Solicitor General Jeffrey Wall stepped up to defend Mesa. Kagan asked Wall whether Hernández’s parents could sue if their son had been standing on the American side, 3 inches from the border. Wall said no: The same “foreign relations and national security concerns” would block their suit. And what about 10 miles from the border in the United States? Wall waffled, but said that “maybe” the same “concerns” would bar them from suing.
Ginsburg, Kagan, and Breyer were prodding Ortega and Wall to admit the astonishing scope of their arguments. The Justice Department doesn’t just want to block lawsuits against agents who commit cross-border shootings; it wants to protect agents who shoot civilians inside the United States too.
Eventually, Sotomayor acknowledged what her liberal colleagues were hinting at: CBP demands immunity for all agents who use lethal force, because it does not believe it should be accountable to anyone. She cited an amicus brief filed by former high-level CBP officials who informed the court that the agency has “high rates of corruption, misconduct, and excessive force,” telling Wall that these officials “tell me pretty persuasively and extensively that the Border Patrol might be a bit of a mess and that disciplining is at a minimum here.”
“All of those things,” Sotomayor continued, “suggest to me that the class you want to create is a class of border patrol agents, whether they shoot across the border or shoot in the border,” who cannot be sued for their unconstitutional conduct.
Sotomayor’s comment finally put the real issue here—CBP’s culture of lawlessness—out in the open. Here are a few highlights from the amicus brief:
• From 2003 to May 2018, CBP officers killed at least 97 people, including 28 American citizens and six children. But from 2007–14, not a single CBP agent was disciplined for excessive force.
• In nine of 24 CBP killings between 2010 and May 2012, agents’ accounts were contradicted by other witnesses, officers, or video evidence.
• In one incident, CBP agents beat Anastacio Hernandez-Rojas, then shocked him with a stun gun until he died of a heart attack. The agents claimed Hernandez-Rojas was combative, but video footage later proved that he was handcuffed on the ground and calling for help as he was murdered. The agents were never disciplined or charged.
• In 2010, a CBP agent shot Juan Mendez, an 18-year-old American, twice in the back, killing him. The agent claimed the victim had fought him, but interviews later revealed that he had been coached by a CBP official to fabricate the altercation. That official was later elevated to the CBP Office of Internal Affairs, and the agent was never disciplined or charged.
• In 2012, Guillermo Arévalo Pedraza was having a picnic with his family on the Mexican side of the Rio Grande when a CBP boat passed by. An agent on the boat shot and killed Pedraza for no apparent reason. The agent claimed that Pedraza was throwing rocks, but myriad eyewitnesses testified that he was not. That agent was never disciplined or charged.
For the families of Hernandez-Rojas, Mendez, Pedraza, and dozens of others killed by CBP under dubious circumstances, Bivens claims are the only possibility for redress. Yet the Justice Department now wants the Supreme Court to effectively quash lawsuits against murderous CBP agents in one fell swoop, by invoking hazy concerns about “national security” and “foreign affairs.” University of Texas law professor Stephen Vladeck, who argued for Hernández on Tuesday, warned against this outcome in stark terms. “Distilled to its simplest,” he told the justices, “the government’s position in this case is that officers in what is self-described as the nation’s largest law enforcement agency should have a functional absolute immunity”—at least “where foreign nationals are concerned,” and perhaps when agents kill U.S. citizens, as well.
Despite Vladeck’s forceful arguments, the majority seemed ready to dismiss the lawsuit and let Mesa off scot-free. Chief Justice John Roberts captured the tenor on the conservative side when he gave Vladeck a lecture about why the court should defer to CBP, which insists that Mesa did nothing wrong. “At least with respect to foreign relations,” Roberts told Vladeck, “I thought the country was supposed to speak with one voice.” The chief justice’s approach would let CBP elevate itself above the law, beyond the scrutiny of the courts. As Sotomayor explained on Tuesday, that’s an invitation to let CBP ignore the Constitution altogether.