Hernández v. Mesa is a case about a horrific event.

Sergio Adrián Hernández Güereca, a 15-year-old Mexican boy, was with his friends near the US-Mexican border when one of those friends was detained by US Border Patrol agent Jesus Mesa. Hernández ran onto Mexican soil, and Mesa fired two shots at the boy — one of which struck him in the face and killed him.

Hernández and his family disagree about the events that led up to this shooting. The family says that Hernández and his friends were simply playing a game where they would run to the fence that separates the United States from Mexico, touch it, then run back to their own country’s soil. Mesa claims that Hernández and his friends threw rocks at him. (Significantly, the Justice Department has refused to take any action against Mesa.)

Regardless of who is telling the truth, the question in the Hernández case is whether Mesa is immune from a federal lawsuit even if he shot and killed Hernández in cold blood. The Supreme Court held, in a 5-4 decision along familiar partisan lines, that Mesa cannot be sued.

The case turns upon whether the Supreme Court’s decision in Bivens v. Six Unknown Named Agents (1971), which permitted federal lawsuits against law enforcement officers who violate the Constitution, has any real force in 2020. After Justice Samuel Alito’s opinion in Hernández, the answer to this question is a resounding “no.”

Alito’s opinion does not explicitly overrule Bivens, but it appears to be laying the groundwork for a future opinion that will eliminate Bivens’ protections against federal officers who violate the Constitution. Notably, Justice Clarence Thomas wrote a separate opinion in which he argues that “the time has come to consider discarding the Bivens doctrine altogether.”

Bivens v. Six Unknown Named Agents, briefly explained

The Constitution’s Bill of Rights places a number of restrictions on law enforcement, including the Fourth Amendment’s ban on “unreasonable searches and seizures.” But the Constitution is silent about whether an individual officer may be sued if they violate one of these restrictions. Although a federal law does permit suits against state law enforcement officers who violate “any rights, privileges, or immunities secured by the Constitution and laws,” there is no such statute that explicitly authorizes suits against federal agents.

Nevertheless, Bivens held that the right to sue federal law enforcement is implicit in the Constitution. “Power,” Justice William Brennan wrote for the Court in Bivens, “does not disappear like a magic gift when it is wrongfully used.” An officer who acts unlawfully “in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own.” And thus the Constitution must offer a remedy to victims of such rogue officers.

Bivens, in other words, rests on something comic book fans will recognize as the Spider-Man rule — with great power comes great responsibility. If the federal government gives someone a badge and a gun, and that person unconstitutionally abuses that power, then they may be held accountable for their actions and can be ordered by a court to compensate their victim.

But Bivens fell into disfavor not too long after it was decided, in large part because the Supreme Court took a sharp right turn.

“For almost 40 years,” Alito writes in Hernández, “we have consistently rebuffed requests to add to the claims allowed under Bivens.” When faced with a Bivens claim, the Court typically looks for reasons why the most recent case is “different in a meaningful way from previous Bivens cases decided by this Court.” If it is, the Court will dismiss the lawsuit if there are any “special factors counselling hesitation.”

Much of Alito’s opinion is a laundry list of reasons why the courts should hesitate to allow suits against border patrol agents involved in a cross-border shooting.

“The political branches, not the Judiciary, have the responsibility and institutional capacity to weigh foreign-policy concerns,” Alito claims, and “a cross-border shooting is by definition an international incident.” Thus, it is better for these incidents to be resolved through international diplomacy, rather than through a lawsuit.

Similarly, “the conduct of agents positioned at the border has a clear and strong connection to national security.” These agents “detect, respond to, and interdict terrorists, drug smugglers and traffickers, human smugglers and traffickers, and other persons who may undermine the security of the United States.” Allowing suits against these agents risks “undermining border security.”

Alito’s opinion, in other words, rests on a kind of anti-Spider-Man rule. Border patrol agents are given great power so that they can use that power. And it is not typically the job of the courts to interfere with how those guards exercise such power — even when it results in the death of a child.

Bivens is probably in its final days

The striking thing about Alito’s opinion is the sheer amount of ink he spills presenting Bivens as an anomaly that’s since been rejected by a new line of decisions. Bivens suits are “a ‘disfavored’ judicial activity,” and the Court has even suggested that if its previous decisions applying a Bivens remedy were “decided today” that it is “doubtful we would have reached the same result.”

Alito also suggests that Bivens does not show sufficient “respect for the separation of powers.” According to his Hernández opinion, “when a court recognizes an implied claim for damages on the ground that doing so furthers the ‘purpose’ of the law, the court risks arrogating legislative power.” If individual plaintiffs are to be given the right to sue law enforcement agents for constitutional violations, that right must be given by Congress, and not the courts.

Setting aside the fact that there are court cases stretching back at least 200 years holding that government actors may be sued when they violate the law, Alito’s view of the separation of powers is debatable. The Supreme Court, after all, established very early in American history that “it is emphatically the duty of the Judicial Department to say what the law is,” and no one can reasonably question that the Fourth Amendment places limits on what law enforcement officers do with their weapons.

The question in cases like Bivens is whether the Fourth Amendment means anything — especially in cases where the government refuses to discipline an officer who steps out of line — or whether the right to be free from unlawful searches and seizures necessarily implies that there must be some way to enforce that right.

The Supreme Court’s decision in Hernández transforms the Bill of Rights into a paper tiger in many cases involving law enforcement overreach. And it foreshadows a future where Bivens is overruled in its entirety.