In a dissenting opinion delivered in Hernández v. Mesa, No. 17-1678 (February 25, 2020), U.S. Supreme Court Associate Justice Ruth Bader Ginsburg quoted Restatement of the Law Third, The Foreign Relations Law of the United States § 402 and Restatement of the Law Second, Conflict of Laws § 145, Comment e.

That case arose when a U.S. Border Patrol agent shot a 15-year-old Mexican national running in a concrete culvert that separated the United States from Mexico, striking and killing him on Mexico’s land as he ran from the United States’ side of the border to Mexico’s side. His parents filed an action against the Border Patrol agent, alleging that the agent had violated their son’s Fourth and Fifth Amendment rights, and seeking damages under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). The U.S. District Court for the Western District of Texas granted the defendant’s motion to dismiss, and the U.S. Court of Appeals for the Fifth Circuit affirmed twice.

In a five-to-four decision, the U.S. Supreme Court affirmed, holding that Bivens did not extend to the cross-border shooting, reasoning, among other things, that the petitioners’ Bivens claims arose under a new context and that there were numerous factors against allowing a Bivens recovery in this case.

Justice Ginsburg, with whom Associate Justice Stephen G. Breyer, Associate Justice Sonia Sotomayor, and Associate Justice Elena Kagan joined, argued, inter alia, that the sole issue in this action was whether “a Bivens remedy [was] available to noncitizens (here, the victim’s parents) when the U.S. officer acted stateside, but the impact of his alleged wrongdoing was suffered abroad,” and that the answer to that question was “yes.” In arguing that the petitioners’ action arose “in a setting kin to Bivens itself,” Justice Ginsburg explained that “the United States, as in Bivens, unquestionably [had] jurisdiction to prescribe law governing a Border Patrol agent’s conduct,” and that “prescriptive jurisdiction reache[d] ‘conduct that . . . [took] place within [U.S.] territory,’” quoting Restatement of the Law Third, The Foreign Relations Law of the United States § 402. She continued, quoting Restatement of the Law Second, Conflict of Laws § 145, Comment e, that “[t]he place of a rogue officer’s conduct ‘[had] peculiar significance’ to choice of the applicable law where, as here, ‘the primary purpose of the tort rule involved [was] to deter or punish misconduct.’”

Read the full opinion here.

Megan Dingley

The American Law Institute

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