Hernandez v. Mesa, 5th Cir., 03-20-18, published
On remand from the U.S. Supreme Court
BEFORE 5TH CIRCUIT EN BANC: STEWART, Chief Judge, and JOLLY, DAVIS, JONES, SMITH, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, and COSTA, Circuit Judges.
MAJORITY OPINION: EDITH H. JONES, Circuit Judge, joined by STEWART, Chief Judge, JOLLY, DAVIS, SMITH, DENNIS,** CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES,*** HIGGINSON, and COSTA, Circuit Judges.
** Judge Dennis concurs in the judgment.
*** Judge Haynes concurs in the judgment and with the majority opinion’s conclusion that Bivens should not extend to the circumstances of this case.
DISSENTING OPINION: EDWARD C. PRADO, Circuit Judge, joined by GRAVES, Circuit Judge, dissenting.
EXCEPTS FROM JUDGE PRADO’S DISSENT:
“Today’s en banc majority denies Sergio Hernandez’s parents a Bivens remedy for the loss of their son at the hands of a United States Border Patrol agent. The majority asserts that the transnational nature of this case presents a new context under Bivens and that special factors counsel against this Court’s interference. While I agree that this case presents a new context, I would find that no special factors counsel hesitation in recognizing a Bivens remedy because this case centers on an individual federal officer acting in his law enforcement capacity. I respectfully dissent.
. . . .
In sum, this Court is more than qualified to consider and weigh the costs and benefits of allowing a damages action to proceed. This case simply involves a federal official engaged in his law enforcement duties acting on United States soil who shot and killed an unarmed fifteen-year-old boy standing a few feet away. I would elect to recognize a damages remedy for this tragic injury. As Chief Justice John Marshall wrote, “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Marbury v. Madison, 5 U.S. 137, 163 (1803). In this case, I would recognize a Bivens remedy for this senseless cross-border shooting at the hands of a federal law enforcement officer. Therefore, I respectfully dissent.”
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Judge Edward C. Prado is nor just “any” U.S. Circuit Judge. Among other things in his long and distinguished career, Judge Prado was the U.S. Attorney for the Western District of Texas during the Reagan Administration. I dealt with him on some immigration issues during my as the Deputy General Counsel in the “Legacy INS” during that time. He is a gentleman and a scholar.
Perhaps appropriately, this is likely to be Judge Prado’s last major published opinion. On March 22, 2018, he was confirmed by the Senate as the U.S. Ambassador to Argentina. Congratulations Ambassador Prado; thanks for leaving us this great dissent as a reminder of how the law should be interpreted and applied!
PWS
03-25-18