U.S. Border Patrol agent Jesus Mesa, Jr. shot 15 year-old Sergio Adrian Hernandez Guereca while Mesa was on U.S. land, and Hernandez had run back across onto Mexican soil. Hernandez’s family sued Mesa under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), which permits damages claims against federal agents even though no federal statute authorized the claim. The first time the claims were dismissed and upheld on appeal, the Supreme Court vacated and remanded for further consideration in light of Ziglar v. Abbasi, 582 U.S. ___ (2017). The Fifth Circuit again affirmed. The Court, in a 5-4 opinion by Justice Alito, affirmed, holding that Bivens did not apply to cross-border shootings. Noting that expanding the holding of Bivens risked implicating separation of powers concerns, the Court declined to extend it into this case due to the impact cross-border incidents might have on foreign relations and national security, and left it to Congress to address the matter. Justice Thomas, joined by Justice Gorsuch, filed a concurrence stating that “the time has come to consider discarding the Bivens doctrine altogether.” Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, dissented, arguing that a Bivens remedy should be allowed to a noncitizen when a U.S. officer, acting stateside, caused a wrong suffered abroad.
A link to the decision in Hernandez v. Mesa is here.