1 00:00:00,600 --> 00:00:05,360 Speaker 1: This is Bloomberg Law with June Grassoe from Bloomberg Radio. 2 00:00:06,400 --> 00:00:09,200 Speaker 1: On Monday, the Supreme Court throughout a ruling that had 3 00:00:09,240 --> 00:00:11,960 Speaker 1: allowed the family of a sixteen year old Mexican boy 4 00:00:12,080 --> 00:00:15,560 Speaker 1: to sue a US border patrol agent who fatally shot 5 00:00:15,600 --> 00:00:19,880 Speaker 1: the teenager from across the border in Arizona. In The 6 00:00:19,960 --> 00:00:23,759 Speaker 1: Justice's action followed their decision last week that the parents 7 00:00:23,760 --> 00:00:26,479 Speaker 1: of a fifteen year old Mexican boy could not sue 8 00:00:26,520 --> 00:00:29,440 Speaker 1: the border patrol agent who killed the teenager by shooting 9 00:00:29,520 --> 00:00:33,479 Speaker 1: him from across the border in Texas. In that ruling 10 00:00:33,560 --> 00:00:36,920 Speaker 1: was divided five to four along ideological lines, with the 11 00:00:36,960 --> 00:00:41,240 Speaker 1: conservative justice is in the majority and the liberal justices dissenting. 12 00:00:41,560 --> 00:00:45,760 Speaker 1: During oral arguments, Chief Justice John Roberts expressed concern that 13 00:00:45,840 --> 00:00:48,600 Speaker 1: allowing the lawsuit could put the courts in the middle 14 00:00:48,640 --> 00:00:52,479 Speaker 1: of foreign relations and national security issues, so that in 15 00:00:52,600 --> 00:00:55,480 Speaker 1: terms of our relations with Mexico, we'd have one agency 16 00:00:55,560 --> 00:00:59,600 Speaker 1: saying this was not inconsistent with policy. We'd have the 17 00:00:59,600 --> 00:01:03,200 Speaker 1: courts thing it is, and at least with respect to 18 00:01:03,240 --> 00:01:06,119 Speaker 1: foreign relations, I thought the country was supposed to speak 19 00:01:06,120 --> 00:01:09,920 Speaker 1: with one voice. But the liberal justices call this a rogue, 20 00:01:09,920 --> 00:01:14,200 Speaker 1: intentional tort. Here's Johnstice Ruth Bader Ginsburg. Here we have 21 00:01:14,560 --> 00:01:20,240 Speaker 1: a rogue officer acting in violation of agency's own instruction, 22 00:01:21,400 --> 00:01:28,759 Speaker 1: using excessive force to kill a child at play. How 23 00:01:28,920 --> 00:01:33,080 Speaker 1: is that call into question any foreign policy or national 24 00:01:33,160 --> 00:01:37,160 Speaker 1: security policy? Joining me as former federal prosecutor Peter Henning, 25 00:01:37,160 --> 00:01:40,399 Speaker 1: a professor at Wayne State University Law School, Peter, the 26 00:01:40,440 --> 00:01:44,720 Speaker 1: majority opinion, written by Justice Samuel Alito, focused on the 27 00:01:44,760 --> 00:01:47,840 Speaker 1: Bivens Action, which is a way for people to claim 28 00:01:47,960 --> 00:01:52,280 Speaker 1: violations of their constitutional rights. Tell us about that under 29 00:01:52,760 --> 00:01:57,360 Speaker 1: a Supreme Court decision back in one Bivens versus six 30 00:01:57,440 --> 00:02:01,920 Speaker 1: unknown federal narcotics agents, then our Codex agents broke into Mr. 31 00:02:02,000 --> 00:02:06,520 Speaker 1: Bivens home and conducted in the illegal search. And what 32 00:02:06,640 --> 00:02:11,040 Speaker 1: the Supreme Court said back in one is you can 33 00:02:11,120 --> 00:02:16,600 Speaker 1: make a claim for a violation of your constitutional rights. Now, 34 00:02:16,680 --> 00:02:21,760 Speaker 1: what Justice Alito wrote in this case is that because 35 00:02:21,840 --> 00:02:26,359 Speaker 1: of separation of powers, that Bivens should not be extended 36 00:02:26,400 --> 00:02:30,240 Speaker 1: to a new context. And so the gist of the 37 00:02:30,320 --> 00:02:36,240 Speaker 1: opinion is that because we're talking about a cross border 38 00:02:37,000 --> 00:02:42,120 Speaker 1: shooting where the victim was in Mexico, that the victim 39 00:02:42,240 --> 00:02:46,520 Speaker 1: doesn't have any standing to bring a case under the 40 00:02:46,560 --> 00:02:51,120 Speaker 1: Bivens decision. The Supreme Court is very larry of getting 41 00:02:51,160 --> 00:02:57,000 Speaker 1: involved in anything involving foreign policy. So they're steering very 42 00:02:57,000 --> 00:03:00,440 Speaker 1: clear of this and essentially saying we're not going to 43 00:03:00,520 --> 00:03:04,680 Speaker 1: get involved. So Alita said, across border shooting claim has 44 00:03:04,760 --> 00:03:09,880 Speaker 1: foreign relations and national security implications in this case, the 45 00:03:09,919 --> 00:03:14,200 Speaker 1: government of Mexico had urged the justices to allow the 46 00:03:14,320 --> 00:03:18,640 Speaker 1: parents to sue. Certainly that's the case here. The problem 47 00:03:18,760 --> 00:03:24,120 Speaker 1: here is that the victim in this case, Mr. Hernandez, 48 00:03:24,840 --> 00:03:29,519 Speaker 1: was in Mexico and was not a US citizen. So 49 00:03:30,120 --> 00:03:33,400 Speaker 1: it's hard to come up with a claim under the 50 00:03:33,440 --> 00:03:38,480 Speaker 1: Bivens decision, where the Supreme Court is very worried about 51 00:03:38,480 --> 00:03:44,800 Speaker 1: getting involved in foreign policy and also contradicting what the 52 00:03:44,960 --> 00:03:49,800 Speaker 1: rules are for the customs and border protection agents. I 53 00:03:49,840 --> 00:03:53,240 Speaker 1: think they really just don't want to get involved in 54 00:03:53,480 --> 00:03:56,920 Speaker 1: this type of a case, and so they have essentially 55 00:03:57,000 --> 00:04:01,160 Speaker 1: said this case is dead. It can't move forward now 56 00:04:01,640 --> 00:04:05,720 Speaker 1: for any type of claim for damages, and so Mr. 57 00:04:05,720 --> 00:04:11,080 Speaker 1: Hernandez family is left out in the cold. The conservative 58 00:04:11,160 --> 00:04:14,480 Speaker 1: justices said that, but it was a five to four 59 00:04:14,840 --> 00:04:19,880 Speaker 1: decision down ideological lines. So what did the liberal justices. 60 00:04:20,160 --> 00:04:23,160 Speaker 1: Justice Ruth Bader Ginsburg wrote the opinion for them. What 61 00:04:23,200 --> 00:04:27,200 Speaker 1: did they say, Well, what she says is that in 62 00:04:27,240 --> 00:04:31,840 Speaker 1: this case, you had a rogue agent who should never 63 00:04:31,920 --> 00:04:37,159 Speaker 1: have fired his weapon at a young man running away, 64 00:04:37,279 --> 00:04:41,960 Speaker 1: and so in her opinion, he should have been subject 65 00:04:42,080 --> 00:04:47,320 Speaker 1: to a lawsuit here because he violated the rules of 66 00:04:47,880 --> 00:04:52,000 Speaker 1: customs and border protection. There's no real need to shoot 67 00:04:52,040 --> 00:04:55,599 Speaker 1: your weapon at someone who's running away from you. And 68 00:04:55,680 --> 00:05:00,640 Speaker 1: so the key question here for Justice Ginsburg was why 69 00:05:00,800 --> 00:05:04,159 Speaker 1: isn't there a Bibbins action here for the family, and 70 00:05:04,360 --> 00:05:08,559 Speaker 1: they should have been allowed to pursue their case. So 71 00:05:08,960 --> 00:05:13,520 Speaker 1: she is very much in favor of allowing a Bibbins 72 00:05:13,560 --> 00:05:18,320 Speaker 1: action here for damages. Now, a majority of the Court 73 00:05:18,440 --> 00:05:22,640 Speaker 1: and that includes Justice Thomas and Justice Gorsuch, have said 74 00:05:22,680 --> 00:05:26,560 Speaker 1: they don't think that Bibbins should be allowed. They want 75 00:05:26,600 --> 00:05:31,200 Speaker 1: to see that decision overturned and that there's no basis 76 00:05:31,279 --> 00:05:35,680 Speaker 1: for a claim against a federal official for violating your 77 00:05:35,720 --> 00:05:40,000 Speaker 1: constitutional rights. Now, whether that will gain any traction is 78 00:05:40,040 --> 00:05:43,240 Speaker 1: a very different issue, but they are certainly pushing to 79 00:05:43,360 --> 00:05:47,159 Speaker 1: have Bibbins overturned. Let's say that they actually did eliminate 80 00:05:47,200 --> 00:05:51,520 Speaker 1: the Bivens action, does that mean that there are people 81 00:05:51,760 --> 00:05:56,000 Speaker 1: who will have no recourse against federal officers or are 82 00:05:56,040 --> 00:05:59,800 Speaker 1: there other things to take the place of a Bivens action. Well, 83 00:05:59,839 --> 00:06:04,360 Speaker 1: there is the Federal Tort Claims Act, which might be 84 00:06:04,400 --> 00:06:08,520 Speaker 1: a basis to bring a claim, but that would really 85 00:06:08,560 --> 00:06:12,159 Speaker 1: only involve if you were injured by a federal officer. 86 00:06:12,880 --> 00:06:16,839 Speaker 1: But if you've got rid of Bibbins altogether, that would 87 00:06:16,880 --> 00:06:23,640 Speaker 1: mean that federal officials would have effectively absolute immunity from 88 00:06:23,680 --> 00:06:29,280 Speaker 1: any type of action seeking damages from them. So if 89 00:06:29,279 --> 00:06:34,240 Speaker 1: there was an illegal search or if someone was arrested illegally, 90 00:06:34,600 --> 00:06:38,120 Speaker 1: you would have no claim. And so if you get 91 00:06:38,200 --> 00:06:43,080 Speaker 1: rid of Bibbins, then that essentially means that federal officials 92 00:06:43,480 --> 00:06:47,040 Speaker 1: have nothing to worry about and never have to look 93 00:06:47,040 --> 00:06:50,320 Speaker 1: over their shoulder thinking, oh my goodness, I might have 94 00:06:50,440 --> 00:06:56,720 Speaker 1: violated someone's constitutional rights. So what Corsa and Thomas are 95 00:06:56,760 --> 00:07:00,720 Speaker 1: saying is it should be Congress who nax a law 96 00:07:00,839 --> 00:07:04,120 Speaker 1: to cover this, not the court. Yes, and in fact, 97 00:07:04,200 --> 00:07:09,280 Speaker 1: there is some push to have Congress codify Bivins, you know, 98 00:07:09,320 --> 00:07:12,960 Speaker 1: put it into the federal Code so that there is 99 00:07:13,000 --> 00:07:17,440 Speaker 1: a way in which individuals can pursue a case against 100 00:07:17,840 --> 00:07:22,280 Speaker 1: federal officials. Now, whether Congress would ever do that is 101 00:07:22,640 --> 00:07:26,600 Speaker 1: very much of an open question because it might pass 102 00:07:26,680 --> 00:07:29,960 Speaker 1: in the House, but it is very unlikely that it 103 00:07:29,960 --> 00:07:33,760 Speaker 1: would ever pass the Senate. And what happened to the 104 00:07:34,200 --> 00:07:39,520 Speaker 1: officer in this case, was he prosecuted criminally? No, The 105 00:07:39,720 --> 00:07:45,720 Speaker 1: Justice Department investigated the shooting, and Border Protection Agent Mesa 106 00:07:46,120 --> 00:07:50,200 Speaker 1: was never prosecuted. The Justice Department found that what he 107 00:07:50,320 --> 00:07:55,080 Speaker 1: did was legitimate. Now Mexico has asked that he be 108 00:07:55,200 --> 00:07:59,920 Speaker 1: sent to Mexico to face criminal charges, but that isn't 109 00:08:00,080 --> 00:08:03,720 Speaker 1: going to happen. That Trump administration certainly is not going 110 00:08:03,800 --> 00:08:09,960 Speaker 1: to send border Protection official into Mexico where he would 111 00:08:10,000 --> 00:08:15,400 Speaker 1: likely be convicted and imprisoned. So what we're seeing here 112 00:08:15,720 --> 00:08:20,560 Speaker 1: is that there really is no recourse against Border Protection 113 00:08:20,640 --> 00:08:25,360 Speaker 1: Agent Mesa that he gets off scott free. There is 114 00:08:25,400 --> 00:08:30,040 Speaker 1: a video in this case, isn't there that belies the 115 00:08:30,120 --> 00:08:36,000 Speaker 1: position that Mesa took. There is, and certainly, in Justice 116 00:08:36,040 --> 00:08:41,160 Speaker 1: Ginsburg's opinion, she calls him a rogue agent. And is 117 00:08:41,200 --> 00:08:45,960 Speaker 1: there any reason to shoot someone who has returned to 118 00:08:46,120 --> 00:08:50,760 Speaker 1: the Mexican side of the border. The claim was that Mr. 119 00:08:50,800 --> 00:08:55,079 Speaker 1: Hernandez and his friends were simply playing there's a culvert 120 00:08:55,320 --> 00:09:00,280 Speaker 1: between the United States between El Paso and Seudad Wars 121 00:09:01,040 --> 00:09:04,360 Speaker 1: and they were just playing there and there was no 122 00:09:04,480 --> 00:09:09,520 Speaker 1: reason for Border Protection Agent Mesa to have shot him. 123 00:09:09,720 --> 00:09:13,800 Speaker 1: And this is really a very stark case because it's 124 00:09:13,800 --> 00:09:18,280 Speaker 1: hard to understand what rationale was going through his mind 125 00:09:18,880 --> 00:09:21,960 Speaker 1: when he decided to shoot the young man. And this 126 00:09:22,080 --> 00:09:25,120 Speaker 1: was a fifteen year old boy who was back on 127 00:09:25,160 --> 00:09:28,480 Speaker 1: the Mexican side of the border. It's hard to figure 128 00:09:28,480 --> 00:09:33,840 Speaker 1: out what the rationale was for shooting him. Now, what 129 00:09:34,000 --> 00:09:39,000 Speaker 1: did the Fifth Circuit decide? Well, they sat on bonk 130 00:09:39,360 --> 00:09:44,719 Speaker 1: and they dismissed the case, saying that because it's going 131 00:09:44,760 --> 00:09:49,719 Speaker 1: to have an impact on foreign relations, that the judiciary 132 00:09:49,760 --> 00:09:53,920 Speaker 1: should not get involved in those types of decisions. So 133 00:09:54,160 --> 00:09:58,200 Speaker 1: the Fifth Circuit decided that there was no basis to 134 00:09:58,280 --> 00:10:03,520 Speaker 1: find that Age Mesa acted improperly and that this was 135 00:10:03,640 --> 00:10:08,400 Speaker 1: really just a matter of diplomacy between the United States 136 00:10:08,400 --> 00:10:12,520 Speaker 1: and Mexico. Now this is a very contentious case, obviously, 137 00:10:13,080 --> 00:10:17,560 Speaker 1: but that's the point here that it's really up to 138 00:10:17,800 --> 00:10:22,480 Speaker 1: the executive the political branches. They have to figure out 139 00:10:22,880 --> 00:10:28,080 Speaker 1: diplomacy and foreign relations, and the courts are basically the 140 00:10:28,120 --> 00:10:31,719 Speaker 1: Supreme Court is essentially saying we're not getting involved in this. 141 00:10:32,040 --> 00:10:34,839 Speaker 1: Thanks for being on Bloomberg Law. Peter. That's Peter Henning, 142 00:10:34,960 --> 00:10:37,559 Speaker 1: a professor at Main State Universe. Thanks for listening to 143 00:10:37,600 --> 00:10:40,920 Speaker 1: the Bloomberg Law podcast. You can subscribe and listen to 144 00:10:40,960 --> 00:10:44,680 Speaker 1: the show on Apple Podcasts, SoundCloud, and on Bloomberg dot 145 00:10:44,720 --> 00:10:51,720 Speaker 1: com slash podcast. I'm June Brosso. This is Bloomberg Ye.