Hernandez v. Mesa

We'll hear argument next in case 171678, Hernandez v.

Mesa.

Hey everyone, this is Leon Napok from Fiasco and Slowburn.

On today's episode of 5-4, Peter, Rhiannon, and Michael are discussing Hernandez v.

Mesa, a case involving a federal agent who shot and killed a Mexican teenager at the U.S.-Mexico border while standing on U.S.

soil.

The U.S.

Supreme Court will decide whether the parents of Sergio Hernandez Huerica, a 15-year-old Mexican teen killed by a border patrol agent, can sue the U.S.

agent in U.S.

federal court.

Later in the episode, the hosts talk to a special guest, Steve Vlodik, the lawyer who argued the case on behalf of the teenager's family.

Mr.

Vlanik, Mr.

Chief Justice, may it please the court.

This is 5-4, a podcast about how much the Supreme Court sucks.

Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have eaten away at America like maggots on a rotting carcass.

That was a little intense, that one.

I'm sorry.

I feel like it devolved to a pretty dark place.

He had input from the team on that one.

That's what happens when Rhiannon and I get involved.

That's right.

I am Peter.

Twitter's the Law Boy.

I am here with Michael.

Hey, everybody.

And Rhiannon.

What up, hi?

And today we are talking about Hernandez v.

Mesa.

This is a case from the year of our Lord 2020,

which seems like it's got to be one of the worst years so far, right?

It's definitely.

And coming up a little bit later, after we talk about the case a bit, Professor Stephen Vodak, who argued this case before the Supreme Court, making this the first episode where we establish our credibility as a real legal podcast about real legal stuff.

And professionals are coming on.

They're talking about the law.

They're experts.

You have to respect us, I think, is the bottom line.

That's right.

No more talking shit to your friends.

Next week, Clarence Thomas.

Imagine.

And I should say, you know, we're going to talk in this episode about the abuse of power and excessive violence used by a border patrol agent.

And I don't think we can talk about that without talking about what's currently happening in the United States, which is mass protests against abuse of power by local law enforcement and against police brutality.

You know, these things are tied up in a singular culture, even though there are differences between, you know, the Border Patrol, which we're going to talk about today, and, you know, the NYPD or the LAPD.

There is a militaristic culture that is insular and defensive of itself and has many mechanisms for protecting its agents who are violent towards innocent civilians.

Yeah, it's a righteous culture and it's a violently defensive culture as well.

Right.

And that culture doesn't come from nowhere, right?

It's weird to think that COVID might not be the defining story of 2020, but that when there are like

hundreds of thousands, if not millions of people in all 50 states and abroad marching in the streets every day, that somehow might be a bigger story.

But nonetheless, in the U.S., we've seen how the pandemic sort of exposes like racial inequality, right?

Where it's minority communities that have taken the hardest hit.

Right.

And so what you see is sort of a society that treats black and brown bodies as disposable.

You can find economists talking about them as human capital and using phrases like better utilizing our human capital as commodities.

And it's that same white supremacist culture that leads to black and brown people dying from the pandemic at a higher rate that also treats them as lesser humans or inhuman in policing, which leads to them being killed by cops at a much higher rate, being harassed by cops at a much higher rate.

And it's that same attitude that you see at the border, the way we treat brown bodies there as well, which is precisely what this case is about, the devaluing of black lives and brown lives by our society.

It's all connected.

That was beautiful.

So I think what this case, Hernandez v.

Mesa, can kind of give an example of is people might want to jump on the idea of a bad apple again, right?

Like this is just one bad cop who did this horrific thing.

And then the legal system sort of figures out objectively the accountability mechanisms we should have for that cop.

But what we see in the streets, and what we see across time, and what the trends are in even local policing across the country, is that it really isn't about bad individual cops, but actually about

that police are a block of people whose purpose is to protect wealthy white people and their property interests, right?

And that they will take that mission so seriously that they will blatantly and egregiously hurt people on camera, hurt journalists on camera over and over again

because they believe in that mission and because their backers politically over the course of decades have put them in a position to do that with impunity.

And the court system has never held them accountable for for doing that because that is their purpose.

Yeah.

And, you know, we're going to talk in this episode about a lot of technical,

even some like procedural reasons why this case is tossed out.

Right.

But it's important to recognize it as part of a broader scheme by reactionaries to shield the powerful.

including law enforcement from consequences of their actions and the consequences of their violence directed at marginalized groups.

And so, you know, you have prosecutors who initially don't bring charges against people like the murderers of George Floyd and are only bringing charges, you know, after public pressure and then have to escalate the charges after more public pressure.

Right.

You have cases that go to grand juries where prosecutors can play down the offense and sort of outside of the public eye, get rid of these cases.

And you have the whole body of common law that has over time coalesced to form a barrier between law enforcement officers and, frankly, responsibility for their actions.

Right.

Any kind of liability.

Yeah.

Right.

You know, and that sort of brings us to this case.

In this case, a Border Patrol agent shot a 15-year-old Mexican boy from across the border.

And the question here is: legally, is that okay or no?

More specifically, what this opinion is about is whether there is any constitutional remedy available when a Border Patrol agent engages in a cross-border shooting like this one.

It wasn't too long ago in our Clapper the Amnesty International episode that we talked about how the court will often go to lengths to toss out cases it doesn't like like on technicalities rather than confront the merits of the case.

And this is another one.

Yeah.

There's no question that this United States Border Patrol agent, Jesus Mesa, shot this child in cold blood.

There are different accounts of what happened, but the Border Patrol story is the kid threw some rocks at him, which is another way of saying that there's no version of events where this is not murder.

Exactly.

When the best story you can come up with is he was throwing rocks at me, so I shot him in the head.

It's murder across the board.

Right.

The child's family's story, by the way, is that he was just playing a game where he ran up to the border with his friends, tagged the fence, and ran back, and the dude shot him.

The problem here is there's no law allowing for suit against federal officers who violate the Constitution.

In the early 1970s, though, in a case called Bivens, what's the full name?

It's like six v6 unnamed federal agents.

The Supreme Court held that even though there's no law about this, the right to sue federal agents for constitutional violations is implied by the Constitution.

But the court took a hard right turn starting in the 80s, and with that turn came the slow rollback of the Bivens doctrine.

And conservatives on the court have figured out every possible excuse they can not to apply it and not to hold federal agents liable when they violate the Constitution.

Re,

walk us through this

unfortunate set of facts.

That's how a lawyer would describe it, right?

Yeah, or PR, PR for Border Patrol.

Right.

Thank you.

Right.

Yeah, no, it's another awful case that we bring you this week.

We begin this parade of horror in June 2010 on the U.S.-Mexico border.

Specifically, we're talking about the area that connects El Paso, Texas with Juarez, Mexico.

And if you haven't been there, it's an urban area.

Sometimes people call it a border plex.

It's a trans-border agglomeration of nearly 3 million people who live there.

And this area is actually the largest bilingual and binational workforce in the Western hemisphere.

More than 50,000 people cross the border between El Paso and Juarez every day for work, school.

It really does feel like one city.

And so border officials and law enforcement agencies from both countries, the United States and Mexico, are obviously operating here at the border and at border cross checkpoints and that kind of thing.

On the American side, this is mostly done by Border Patrol.

The purpose of Border Patrol is to enforce U.S.

regulations on...

you know, all that bullshit, international trade, customs, and immigration.

And which is to say, like, border patrol, these are federal cops, right and you bet your ass they're just as dumb and self-important and sadistic as state cops are they have two main functions which is making sure like the proper tax is levied on your TV as it's like coming through port yep and making sure Mexicans don't cross the border yep that's correct those are the big ones that's the job description

so some facts are certainly disputed by the parties in this case about what happened like Peter said but there's actually a lot that really isn't in question.

15-year-old Sergio Hernandez, who is a citizen of Mexico, on this day in June 2010, he's hanging out with a group of friends on the Mexico side of the border.

They're playing a game where they run up the incline of the culvert at the Paso del Norte Bridge, and they touch the border fence, and then they run back.

Both parties agree that this is a common occurrence.

Kids who live around the border play games.

They hang out around the border because that's where they live.

And Border Patrol knows that kids do this.

Significantly, Sergio Hernandez is in Mexico the whole time that this incident plays out.

Things get stupid and violent when Border Patrol Agent Jesus Mesa sees the children running around.

For reasons that will never be known, he interrupts the kids and he detains one of Sergio's friends.

And actually, after this incident, he says that the kids were trying to get into the U.S.

illegally.

Many witnesses, though, say that this is just not true.

So when Agent Mesa detains one of the children, the rest of the kids, including Sergio, sort of they run back away from the border, like kind of further into Mexico, and they all stand together behind a pillar.

And Agent Mesa says that the kids started throwing rocks at him.

Important to note that the Border Patrol statement that's released directly after this incident said that Agent Mesa was, quote, surrounded by suspects who were getting closer despite his orders at them to stop and retreat.

Cell phone footage from the incident shows that this is also just not true.

Agent Mesa is a federal law enforcement officer.

Hold on, you said also, did the cell phone footage show that they weren't throwing rocks?

Oh, I guess I just said that many witnesses said that this wasn't true about the kids trying to get into the U.S.

Oh, got it, got it, got it, got it.

Okay.

Agent Mesa, a federal law enforcement officer, is standing on the U.S.

side of the border, and the children are on the other side of the border in Mexico, about 60 feet away.

By the way, it's worth noting that this agent was on a, on a bicycle.

Beautiful.

Can't make this up.

Such a vivid image.

He's like this guy just rolling through the desert on his little BMX with like a fucking assault rifle slung over his shoulder.

And some kids are like, hey, you fucking loser.

And he's like, I'm going to kill those fucking kids.

You know what?

You know what I've been thinking about too?

And it's not really relevant,

but it still pisses me off is that, you know,

what?

I'm just thinking of him.

Those kids have made fun of my bike for the last time.

Yes.

Just pedaling up.

Just fucking kids.

Oh, God.

You know what really pisses me off and got me super mad today?

It's the whole like militarization of the police and like the weapons that they have and stuff.

If Border Patrol agents weren't walking around with standard issue AR-15s, he's not able to shoot these kids.

You know what I mean?

Like it fucking sucks.

Like

Agent Mesa, at worst, right?

In the worst possible way that these facts could be interpreted, he has some rocks being thrown at him.

And his reaction is to fire multiple times at this group of children.

And the result is that Sergio Hernandez is shot in the face and killed.

So the Hernandez family sue for damages in the United States.

And Hernandez versus Mesa, this case actually goes up to the Supreme Court twice, but this time in 2019, the question is whether the Hernandez family can bring this cause of action.

So the Supreme Court is not deciding here whether Agent Mesa acted unlawfully or whether he violated Sergio's constitutional rights.

They're just deciding if, in the context of a cross-border shooting, a federal agent can be sued for violating someone's constitutional rights and whether or not he did violate constitutional rights would be decided later on.

So to talk about the law that applies here a little bit, like I mentioned, there's a case from the early 1970s, a Supreme Court case called Bivens.

You can sue state officers, police officers, for example, under the law for constitutional violations, primarily under a statute that's referred to as Section 1983.

Right.

But there's no statute that applies to federal officers.

So the Supreme Court back in 1972, when the court was a little bit cooler, said, look, that's bullshit, right?

Obviously, there needs to be a remedy for these sorts of constitutional abuses.

And this was a case about federal agents who

did a drug bust and arrested a guy without a warrant, violating Fourth and Fifth Amendment rights.

So the Supreme Court held that even though though there's no law, the right to sue federal agents for constitutional violations is implied by the Constitution itself, right?

They're basically saying, look, if we're saying that the Constitution means anything, you have to be able to sue the federal government representatives who violate it.

Yes.

For money damages.

For cash, for sweet.

For that sweet, sweet cash.

Yeah.

Right.

Because if a cop stops and frisks you illegally and and he finds pot on you and they try to bring charges, you could get that thrown out of court.

You can sue and say, look, this was,

or not necessarily sue, but bring a motion in your criminal defense saying, look, this was detained illegally and it gets thrown out of court.

And then maybe your case gets dropped.

But like if a cop just arrests you, there's no sort of comparable relief available, right?

Like, how do you get made whole?

Your liberty was restricted.

The state detained you.

They can't undo that, right?

And so what's your remedy?

And what Bivens said is, well, look, you can get money, right?

That's what you can get.

That's how you get made whole.

Yeah, exactly.

And in Bivens, the Supreme Court held that the right to sue federal law enforcement, that's implicit in the Constitution.

And Justice William Brennan, in that opinion in Bivens, wrote, quote, power does not disappear like a magic gift when it is wrongfully used.

An officer who acts unlawfully, quote, 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 so what the Supreme Court is saying back then in Bivens is that the Constitution must, like it has to offer this kind of remedy to victims of such rogue officers.

Right, right.

And, you know, since then, the court has gotten more conservative and they have started to limit the circumstances in which this can actually be applied.

And they've said, look, we're only going to allow lawsuits after we make sure that there are no, quote, special factors counseling hesitation, which is another way of saying we'll allow lawsuits against federal agents if it suits our preferences, right?

If we think it makes sense.

And so, you know, as Rhiannon mentioned, this is not about whether there is a Fourth or Fifth Amendment violation in this case.

It's about whether there can even be a lawsuit against the officer at all by the family of this kid.

Right.

And so one of the preliminary questions with Bibbins claims is whether the case is, quote, arising in a new context, which is sort of like the legal standard or term of art.

And that's basically just a test that conservatives invented out of thin air in the 80s to, like Peter said, avoid applying Bibbons

by describing any new case as breaking new ground and expanding the law and blah, blah, blah.

And we wouldn't want to do any of that.

Right.

And what they would do is basically say, like, look,

yes, we found these other federal agents liable, but this is a new context because the kid who got shot and killed was not on American soil.

Right.

The border patrol agent who shot him was,

but the kid was standing in Mexico.

And this context requires like close examination.

And then they would just, you know, find whatever they could as a reason to toss it out and say that it was different from the prior context.

Right.

Even though everyone involved agrees that had the kid been standing a few feet over the border in America, you could sue the border patrol agent.

The question here is: can you sue him when the kid was in Mexico?

Right.

And so the majority here says, duh, and Biffins, everything happened on U.S.

soil, right?

The officer is in U.S.

soil, the victim was on U.S.

soil.

It was all on U.S.

soil.

But here, the kid was in Mexico and like,

that's a new context.

Are you fucking kidding me?

Duh.

And the dissent's like, look, the officer in both cases was on U.S.

soil, which is what matters, right?

It's a U.S.

officer exercising, you know, power granted to him by the U.S.

government on U.S.

soil.

Right.

And pretty much everyone agrees that if the kid were like a few feet closer, right?

Like we're talking literally a matter of feet,

Bivens would govern, right?

If he were on the U.S.

side of the border, like a little bit closer in the culvert, Bivens would govern.

Right.

And the parties, in fact, agree to that.

I mean, the government says that that is true.

That's not a liberal interpretation.

Border Patrol says that's true.

The lawyers admitted it, an oral argument.

Exactly.

Yeah.

And so how could the kid being a few feet further be a meaningfully different context that like totally changes the whole, what's the word I want to use?

Character of the claim.

Yeah.

Right.

Yeah.

But the majority just don't, they don't give a fuck.

Their entire opinion rests on the idea that this kid making it over the border before CBP murdered him matters.

Right.

Right.

And it's important to note that this entire decision rests on this distinction.

The court, the parties, everyone involved admits that if the kid had just so happened to be on the U.S.

side of the border, a few feet away, his family could sue.

And the court sort of uses this border distinction, you know, which side of the border he was on, and predicates their entire reasoning around it.

And they use it as a jumping off point to say, look, this will have an impact on foreign relations.

And so Alito is like, the court shouldn't wade into matters of foreign policy, right?

That's really the prerogative of the other branches of government.

This is such a bullshit dodge.

The case is already before you.

Your decision will impact foreign relations, whether you like it or not.

Holding that the border patrol agent can't be liable isn't less of a foreign policy decision than holding that he can be.

Alito says, look, both countries have legitimate interests, and it's not our job to arbitrate between those nations.

But Mexico filed a brief in this case expressly stating that they want a remedy here.

So declaring that there isn't a remedy here is arbitrating between

the nations.

Exactly.

And he's like, look, this is really the business of the executive branch.

But the executive branch can't hold this agent civilly liable for the shooting.

So, like, what's he actually talking about here, right?

The question of whether someone can recover damages from someone else can't be answered by the executive branch, period.

And part of what he says here is that

litigation would embarrass our government abroad.

I mean,

come on, man.

I mean, if you can, first of all, just from a, in a per, like in my heart, my initial instinct was like,

obviously america can't be further embarrassed at this stage right i mean we've right we're at maximum embarrassment at all times 100

we're maxing out just exactly top of the bar uh but also like i mean if you can stop a judicial proceeding because it's potentially embarrassing to america that would stop all judicial proceedings i think maybe

yeah A lot of the big ones.

A lot of them.

Maybe I'm exaggerating a little bit, but we're maybe like 85% just grind to a halt.

That can't be the standard.

Right.

If you could just ban things because they're too embarrassing to America, Samuel Alito wouldn't be able to write opinions.

Yeah, that's right.

That's right.

That's exactly right.

Well, and just the idea that

a judicial proceeding following this incident would be more embarrassing than the incident that just happened, which is that an American officer shot and murdered a child over the border is ludicrous.

Like maybe actually some legal accountability would help what foreign nations think about the United States.

And so it's, it's absurd.

But really regardless of whether you think this might implicate foreign policy somehow or not, the question is whether this officer violated U.S.

law.

And tons of crimes have components that technically cross the border.

But if the fundamental question is whether there's a violation of U.S.

law, is that really a foreign policy issue?

Right.

And you can't predicate your defense or like claim that it's that your crime is totally okay because like an aspect of it crossed a border.

You can't launder money in the fucking Caymans and be like, well, this is more of a foreign policy issue.

So you can, you can't get me in trouble for it.

Right.

Right.

And look, there's no real assertion here that the Border Patrol agent was acting pursuant to CBP policy.

And like the court sort of trying to dance around this by saying that, you know, CBP didn't really sanction him or whatever.

But look, he's clearly like violating policies and procedures, which means it can't implicate foreign policy holding him accountable for his violations of actual U.S.

policy, actual U.S.

procedures, and actual U.S.

law.

Right.

And like, if this kid were an American citizen, if this kid were 10 feet closer, like this case would come out very different, right?

But this guy got fucking lucky, essentially, because he didn't know this kid was or was not American.

And,

you know,

this is just my guess, but if you're like fucking taking pot shots at kids, I don't think he like was strategically waiting until they crossed the border before he like took his shot.

Right.

That's a really good point.

And I think also like we should be clear about what this argument, the argument that like letting this lawsuit go on implicates foreign policy.

We should be clear about what that argument really means because this kid's family is trying to sue the guy who shot their child to death.

And the court is saying, well, look, if the kid was on the U.S.

side of the border, sure, maybe you could do that.

But unfortunately, he was a few feet on the other side.

So this is actually an international incident.

We can't help you.

We wash our hands of this.

Right, right.

The purpose of lawsuits in these cases is to hold federal agents accountable, which means that foreign citizens can sue under these laws and get damages in the event that there's been a constitutional violation yeah and in terms of incentives like if you have to think about it like

if we want there to be any incentives at all for our border patrol agents to not just be firing at kids right we're running around in this sort of like in-between land right like we talk about crossing the border but this culvert is sort of like a patrolled area that's sort of a blend right it's like sort of a gradient absolutely yeah

there needs to be some disincentive right like if this is not u.s policy if the u.s policy is don't just shoot kids and uh border patrol agents are are doing it and we want to disincentivize them this is precisely how you do it right right so this is the supreme court weighing in and uh saying no that's actually fine like they should be able to do that and if we think that's wrong like that's for somebody else to to decide right you know that's not us they're passing the buck on on the constitution And so the next thing Alito does is say,

look, this would, if we held the Border Patrol agent liable,

this might undermine border security.

And the first thing to note is that this is directly at odds with his first point.

His first point was like, well, look, this is foreign policy stuff.

that the court has no business addressing, right?

And now he's like, by the way, here are my thoughts on how this would impact the security of the border.

Here's my keeping out the Mexicans section of the opinion, you know?

And the whole section is predicated upon Alito's opinion about the significance of illegal immigration from Mexico.

Right.

He talks about like stopping drug traffickers and cartels and terrorists and shit.

Yeah.

And it's like, you know, this is about some fucking psycho agent doming a 15-year-old, right?

Right.

Like, the cartels aren't involved, dude.

Yeah.

This isn't narcos.

This is some nut job shooting a kid.

There wasn't any like real suspected criminal activity.

And Alito basically argues like, yeah, this case in particular might not involve national security, but the Border Patrol generally does.

So like we can't allow them to be sued.

Incoherent.

The entire point of Bivens and the rights that it created is that it holds law enforcement accountable when they're operating outside the boundaries of their usual job.

So the argument here is: look, killing some kid in cold blood isn't part of his responsibility as a border patrol agent.

So maybe we should be able to hold this guy liable.

Right.

The murdering of a 15-year-old child because he's antagonizing you, or at worst, tossing some rocks at you from 60 feet away, which, by the way, unless he's fucking Patrick Mahomes, I think you'll be okay.

It's just absurd to think think that you can't hold someone liable in this sort of situation.

He's not acting in his like official duties.

He's not carrying out Border Patrol responsibilities.

His boss didn't tell him to do it.

Right.

He's just getting into fucking Royd Rage beef with some child.

Exactly.

Right.

And like, I don't want to get too technical, but like just to be clear for our listeners, we mentioned this up top.

This is really about whether or not you can even bring a case here, right?

Like if Fernandez won won on this, then there's the dispute about the extraterritorial application of the Fourth Amendment.

And there's precedent on that, right?

With like the big cases like habeas corpus applying at Guantanamo Bay.

And there would be a lot of argument on that.

And there's briefing on that in this case, assuming that they might get to that issue.

But like, we're not even talking about that.

We're talking about like, can you even fucking sue?

Yeah.

Like, can you even get to that question of whether or not the Fourth Amendment applies in this like culvert?

And the court's like, no.

You don't even get to sue.

Yeah.

The question is, does this family get a day in court in the U.S.?

Right.

And I want to make the point here about what the role of the law should be and how the court should be operating, regardless of the foreign policy or the border implications.

Like, how is it a good thing for the mechanisms of legal accountability that we supposedly have set up in this country?

How is it a good thing to arbitrarily handicap themselves like they're doing doing here?

Like, I always go back to like, who is policing the police, right?

And during oral argument, the conservative justices mentioned that the Border Patrol internal investigation found that Mesa didn't do anything wrong.

And the FBI investigation found that Mesa didn't do anything wrong.

But this is a major abdication of the court's responsibility, like as a check on the executive.

Any meaningful legal accountability system requires that the court take seriously its duty to police the police.

And that was the point point of Bivens to say that even if there isn't a statute giving you this legal avenue for accountability, the courts are going to take this seriously.

And the conservatives here are fine making themselves a weaker institution and writing off this duty that they have to all of us because they don't think it's that big of a deal if an American officer shoots into a group of Mexican children for no reason.

Right.

And you know, a few episodes ago, we talked about how maybe the court should act as if the NSA, the notoriously shady NSA, is like a little less honest than your average party before them.

And similarly here, maybe we don't need to treat the internal investigation of the fucking Border Patrol,

the closest thing we have to the SS in this country.

I guess besides ICE, right?

We've got contenders.

I didn't mean to get presumptive there.

But maybe we should act as if those like internal investigations are the fucking absolute bullshit kangaroo court nonsense that we all know they are.

Exactly.

We don't need to give deference to their conclusions.

Some fucking hump who took a break from screaming at his wife to look into this for 20 minutes, gathered some cell phone footage and was like, eh, maybe that kid was throwing rocks.

And that was the end of the fucking investigation.

Right afterwards, right afterwards, the PR person, the media, whoever fucking person at Border Patrol said that these were suspects who were surrounding agent mesa and coming at him and disobeying orders until cell phone footage and witnesses were like what the fuck are you talking about that is not what happened kids cowering behind a fucking pillar right right yes

all right before we get to our interview with professor vladic i want to make a couple points there is a deep irony here uh the majority is constantly acting as if its approach is designed to avoid wading into policy issues that it's unqualified to answer.

But of course, it's implicitly answering all of them.

Alito says, Look, the courts can't involve themselves in these foreign policy issues.

But then he drones on about national security interests and the border and so on and so on.

This entire approach is a microcosm of maybe the most central component of conservative jurisprudence, which is fake neutrality.

Conservatives use formalistic reasoning as a way to pretend as if they are being neutral by pretending that the framework that they're using is neutral.

And you're expected to believe that the fact that they land on politically conservative outcomes nearly every time is just a coincidence of some sort, right?

This is never more obvious than when Alito is writing an opinion for the simple reason that Alito is genuinely a hack, just like in his core, a hack who is politics first, ideology forward, where Roberts is capable of like stepping back and thinking of how to achieve his ends strategically.

Alito sees what's immediately in front of him and walks in a straight line towards it.

And that results in, I think, some like particular instances of like, I don't want to say intellectual laziness.

It's his acknowledgement that he doesn't need to do more because they've got the five votes.

Yeah, right.

He doesn't have to try hard.

Yeah.

And I think maybe the last thing I want to say, there's a very important point in here about how conservatives view rights.

This is a potential fourth and fifth amendment case.

And the conservatives are saying, like, look, whether or not those amendments are being violated, There's no right to sue here, and therefore there's no remedy for this kid's family.

Yeah, exactly.

And that's important because it highlights this big distinction between how the right and the left view rights.

So, we on this podcast are legal realists, and we focus on how the justice system works in reality, not as an abstraction.

And that's really to say that rights without remedies aren't rights.

If someone says you have a right,

like not to have your purse stolen, but then you have your purse stolen, but you can't do a single thing about it, then guess what?

The right doesn't exist.

That's not a right then.

Right, right.

And conservatives view rights as like conceptual, right?

Like almost like ethereal.

They view them as God-given in many cases, and they don't view them as necessarily being tied to remedies.

They see the violation of the Constitution without a remedy for the person whose rights are violated.

And they're just like, wow, that's like an unfortunate technicality, you know?

And this is what legal formalism is and what it does.

It is a framework of rules that exist separate and apart from the people it impacts and the people whose lives it controls.

And so you get these situations where through a series of arbitrary technicalities, as petty and meaningless as literally standing in one place instead of a few feet away, the Supreme Court can say there's no remedy if your child is murdered across the border by some fucking psychopath federal agent.

And a lot of the glorification of this country comes out of the idea that this is the one place on earth that you have all these rights that no one can take from you.

Some fucking Army Reserve dropout, right?

Some scum of the earth who has never once made society a better place.

killed a child to make himself feel strong.

And the court held here, in effect, that that kid didn't have a legal right to live.

The court would never admit that that's what it held, but it did.

And that's why legal rules will never save us, right?

They're just words on paper.

And people like Sam Alito will never be made to feel human empathy for a poor Mexican kid.

You don't guarantee human rights and dignity by writing them down.

You guarantee them by applying pressure to power until it bends.

Exactly.

For our first guest on the podcast, we wanted to have someone who knows what it's like in the trenches and knows how to argue in front of the Supreme Court and, you know, the sort of tactics you use when you're arguing, especially in a situation where you have five conservatives and you're arguing a liberal position.

And so that said, Professor Stephen Vladok.

Steve, welcome.

Thanks for coming on.

I'm honored.

Longtime fellow traveler on Twitter, first time caller.

Amazing.

We're so happy to have you.

We are.

Steve has a special perspective on this case in that he argued it.

Yeah, way to go, Steve.

You couldn't convince Sam Alito.

You really dropped the ball, dude.

I'm like the goalie, and everyone's just chanting.

It's all your fault.

So we've been bouncing this case around, and we have a bunch of level questions, but I guess maybe we should talk about the motion to dismiss standard.

This was a motion to dismiss, which is that when you're moving to dismiss a case, the standard for our listeners for a motion to dismiss is that you should take the pleadings as if they are true.

Sort of assume that whatever the plaintiff is asserting is accurate.

So if I say,

hey, I want to sue you because you gave me a nasty look in the subway, the court can say, look, even assuming that's true, you can't actually sue someone for that.

So we're tossing out your claim.

And it seems, reading the opinion, like the court just completely ignores that.

Is that your impression too?

And we obviously have opinions about why they would do that.

I'm just interested as, you know, as the guy who was in the trenches, is that what you feel?

And, you know, what are your thoughts on that generally?

Do you feel like that's where they really drop the ball?

No.

I mean, I think the line that really jumps out is, you know, Justice Alito is reciting the facts in his majority opinion and he says, you know, there's disagreement about what happened.

Right.

And, you know, when I'm reading the opinion today, come down, I'm like, what the hell?

There's, you know, the disagreement is not the posture of this case at this stage, Justice Alito.

Yeah.

Right.

But, you know, that had been there.

I mean, Peter, that had been in the case all along.

You know, the Fifth Circuit in its on bank opinion on remand.

talked about how there was dispute as to the facts.

The Justice Department in its amicus briefs in the Supreme Court.

Agent Mesa in his briefs, you know, kept harping upon the facts as they portray them as opposed to how they were portraying the complaint.

I don't think it mattered in the end.

Like, I don't think that, you know, the decision came out the way it did because the court didn't just take the facts as alleged in the complaint as true.

But I do think it's emblematic of this attitude that the court can be very strict about those kinds of procedural formalities when it helps them swim in the direction it wants to swim.

And they can just completely ignore them.

You know, we were arguing against both Agent Mesa, who is represented by a private attorney, Mr.

Ortega, and the federal government as a friend of the court.

And most of the arguments, or at least much of the argument, that Alito adopts in his majority opinion isn't stuff Agent Mesa argued.

It's just stuff that the U.S.

argued as a friend of the court.

Usually the Supreme Court says, you know, we can't just rely on what the Amica says, oh, unless it's the federal government and we want to.

Right, right.

So there is a dispute here about what actually happened.

One party says the kid was throwing rocks.

The other says he was playing a game.

So what is our best understanding of what actually happened at the border that day?

Yeah, I mean, so one of the things that never makes it into the Supreme Court decision this time, although it did, I think, get a brief mention when the case was in the Supreme Court the first time three years ago, is that there's a cell phone video of the shooting.

I mean, you know, I'm not going to sort of die on the hill that all videos are perfectly reliable.

But the video, such as it is,

strongly substantiates and strongly supports the allegations in the complaint, which is that the shooting was unprovoked, that Meso was not being attacked at the time he shot and killed Sergio Hernandez.

And so, I mean, when we talk about the, you know, the way that the court plays fast and loose with the posture, it's galling to me in two respects.

One, because whatever actually happened shouldn't matter at this phase of the litigation.

The allegations in a well-pled complaint are supposed to be taken as true because we do facts after we do the motion to dismiss.

But two, everything we actually know is inconsistent with the version that the Justice Department and Agent Mesa keep putting out as their version.

And so, you know, it's a little bit of a heads we lose, tails you win, right?

Because if we actually were going to talk about what's not in the record, it only reinforces the claims.

But we're not supposed to be talking about what's not in the record because of where we are in the case.

So again, I don't think it would have made a difference.

Even if the facts had been undisputed, the court would have come out differently.

But I think it's just testament to just how uninterested the majority was in sort of dotting the procedural I's and crossing the procedural T's that the, you know, the facts can be portrayed as disputed when, one, that's not a legally available argument at this point.

And two, if we're going to go outside the record, the stuff outside the record actually is pretty bad for Agent Mesa, not pretty good.

Right.

Right.

When you saw, before you read the opinion, when you saw it was Alito, you knew, right?

I mean,

I mean.

So, I mean, the way I put it, so I, you know, I'm Moonlight as CNN's Supreme Court analyst.

And so, every time there's a handdown day, we all get on a conference call and Ariane DeVogue, who's the fantastic lead Supreme Court reporter and producer for CNN.

So, Ariane's in the press room.

So, she's the one who actually is the first person to say the opinion is X and it's by Justice so-and-so.

So, she says, it's Steve's case, you know, as opposed to Hernandez, and it's by Justice Alito.

I'm like, like, well, I'm done.

That's all I need to know.

I have a friend who is in the court for the hand down.

And apparently, like, you know, someone standing next to them or near them, when the chief says, Justice Alito has the decision of the court in Hernandez versus Mesa, the person like, exhaled.

Alito was not a vote I was counting on.

Yeah.

Were you pitching to a certain conservative?

And maybe, and generally, do you think about your arguments in those terms?

Like, you know, maybe we have an angle on Gorsak here, or do you just sort of make the case and hope that it sticks with someone?

You know, we, I mean, we filed the circ petition in this case 12 days before Kennedy announced his retirement.

And so, you know, I think the petition was very much pitched at Kennedy.

Kennedy, who had written the majority opinion for the court in Abossi, the last Bivens case, where he'd gone out of his way to, in our view, carve out cases of law enforcement officers acting badly.

We knew where Roberts, Enelito, and Thomas were.

I mean, that was just, you know, a given.

We thought we didn't have much of a shot with Justice Kavanaugh because Justice Kavanaugh, when he was on the DC circuit, had written a concurring opinion in a Bivens case involving a U.S.

citizen allegedly tortured by the FBI, and it had gone the wrong way.

So we actually thought our best chance, which is not to say a good chance, was Gorsuch.

You know, I'm not ashamed to say that our merits brief is basically written.

not totally pitched toward him, but heavily pitched toward him.

And then we had an exchange like 10 minutes into the argument where I was like, nope.

Yeah.

Yeah.

Yeah.

But that's like, he, he has like joined the liberals on some like criminal, like defendants' rights stuff.

So I could see how you could, he could come into purview as like maybe a gettable vote in here where you're talking about accountable.

Or at the very least, I mean, you know,

a 1% chance is greater than a 0% chance.

The other thing is, it's not just, I mean, Michael, you're right.

He does have this libertarian streak that we've seen in some of these criminal cases.

And obviously we didn't get him.

I probably could have told you that 11 and a half minutes into the oral argument, but I was really surprised that he actually went with Thomas.

Like, let's just get rid of Evans altogether.

Yes.

As opposed to the Alito, no, no, no, this case is especially bad.

Right.

Yeah.

So I watched or listened to the oral argument, and you brought it up that Agent Mesa was represented by a private attorney.

I was struck in listening to the oral arguments at how

frankly awful that attorney was, like, perhaps the worst oral advocate ever to stand in front of the Supreme Court justices.

And so I was just wondering like what your insight is, maybe commentary on that.

But I think even to casual listeners, it was obvious that the agent and the government, like they don't have a good argument.

They sound crazy.

They can't answer basic questions that the justices repeat several times, right?

So why are the, why do the justices build the argument for them anyway?

Right.

And yet they win.

Mr.

Chief Justice, please, the court.

The petitioners are asking this court to create a cause of action, an implied cause of action, where none has existed since the formation of our republic by extending Bivens in a new context

where Congress

has declined to provide a remedy.

So I've seen some bad arguments in my time and I'm not necessarily sure how to rank them.

I do think that this is a court that is,

as I said, I mean, I think very happy to not worry about procedural formalities when they're getting in the court's way.

You know, I knew going in that it didn't matter how good or not, you know, Mr.

Ortego was, you know, that I was basically arguing against, you know, Jeff Wall, the deputy SG.

And, you know, and I think Jeff is a very smart and savvy lawyer, and he knows that he doesn't have to convince, you know, six justices.

He just has to convince five.

And so he's going to, you know, he's going to be very aggressive about staking out the position that he thinks is going to attract the five he needs.

And I think he did.

Yeah.

You know, to the broader question of, I mean, I'm obviously hopelessly biased, not just because, you know, I represented the petitioners, but because I've been writing about Bivens for my entire career.

And

the disingenuity that I think has characterized the entire, at least second half of the retrenchment, like the, you know, 1980 to 2000, the court is sort of narrowing Bivens and some of it's dubious, some of it's not, but it's still, it's not killing Bivens.

But ever since the Maleskill case in 2001, just the shamelessness with which the justices say we've stopped exercising the power to recognize implied statutory remedies, it follows as if it really follows.

We should stop doing the same for constitutional remedies.

And it's just, to be frank, I blame Justice Kennedy for a lot of that because Kennedy was the swing vote for most of the time that this mattered.

Kennedy's the one

who's the swing vote in Wilkie versus Robbins, in Iqbal, in Menetchi.

Those cases don't all come out five to four, but they're written the way they are because, you know, of Kennedy's idiosyncratic views about Bivens.

So when he leaves, it's very easy for the conservatives to say, you know, we were already most of the way there.

Let's just take one more step.

What do you think the consequences of narrowing Bivens are?

And what do you think the consequences of the Thomas Gorsick position of the effective abolition of Bivens are?

Yeah, I mean, you know, we spend a lot of time when we get people in law school trying to teach them the difference between first order and second order rules.

The first order rule is the substantive rule.

You You know, don't hit that guy.

Don't steal this person's money.

And the second order rule is, well, once something bad has happened, how do you go about fixing it?

Right.

And Bivens is the quintessential second order rule.

You know, when a federal officer violates the Constitution, Congress, for better or for worse, has never actually provided what we call a cause of action, has never specifically and directly authorized.

victims of those violations to go to court and to sue the officer or to sue the federal government.

In contrast to states, where Congress, in one of the most important statutes really in, I wouldn't say American history, but in the history of the federal courts, in 1871, Congress in the statute that we today call 42 USC Section 1983 said, if a state officer does that, oh, go sue them.

Congress never did that for federal officers for the obvious reason that Congress has absolutely no interest.

in increasing the monetary liability of the federal government.

It is literally the third rail of Congress that even contemporary Democrats and Republicans can probably agree upon.

That hadn't stopped the courts.

So from the founding until Bivens, which is decided in 1971, there is a rich dual-track history of state and federal courts alike holding federal officers accountable either prospectively in an injunction because they're continuing to violate your rights or retrospectively for damages because the violation has ended.

You know, that tradition is rich.

It's recognized by no less a bleeding heart than Justice Scalia in a majority opinion in 2015 called Armstrong.

So when Bivens comes along, the Supreme Court is not sort of deciding whether we should invent this remedy out of nothing.

The Supreme Court is given a choice between leaving these six unknown named agents of the predecessor to the DEA to New York trespass law or recognizing a federal remedy.

that is recognized by the courts that is enforcing the Constitution directly against these officers and allowing damages.

And the Supreme Supreme Court says we'll take the federal remedy.

Steve, so we've talked a bit about the absurdity of the court's ruling here, but what is, in your view, a coherent view of how the court should treat these sort of gray area constitutional violations, right?

Where you have someone who's not a citizen, who's across a border a little bit, or whatever it might be.

Is there a really coherent and consistent way to apply the law in these situations?

Well, I mean, yes, yes, I'd start by applying it.

Right.

I mean, so what's remarkable about Hernandez is that we end up with no resolution one way or the other about whether, in fact, the Fourth and Fifth Amendments even applied to this cross-border shooting.

And whenever I describe the case to folks who don't follow the Supreme Court that carefully, they say, oh, so the case is about whether the Constitution applies across the border.

I'm like, no.

One of the things that Bivens and the retrenchment of Bivens does is it actually is a form of constitutional avoidance because it allows the court to sidestep what really ought to be some pretty important constitutional questions one way or the other.

You know, I don't have a ton of faith that the current Supreme Court would have come out the way I would have wanted them to if it had reached the merits in Hernandez, if it had actually had to say, you know, was Sergio protected by the Fourth or Fifth Amendments at the time he was shot?

They might have said no.

But I would have much preferred that because, you know, that seems to me much more consistent with the court's function, which is, you know, to sort of settle the meaning of the Constitution in live cases.

My rebuttal in the Hernandez argument was basically trying to point out that a world with no bivins is a world with absolute immunity

when the Supreme Court has spent the better part of the last 38 years telling us that certainly at least law enforcement officers can't have absolute immunity.

And so I guess

my sort of big sky hope for this litigation from the get-go, you know, if we had ended up fighting about the merits, merits, I would have been really happy, even if we had lost, because I think that would have been the right frame.

And if five justices of the Supreme Court say the Fourth Amendment doesn't apply here versus there, so be it, right?

Versus saying, even assuming it does apply, there's absolutely no remedy for even the most egregious violation of it.

I lose a lot more sleep over that.

I think that's a good place to wrap, guys.

I think that's great.

This was a lot of fun.

I really enjoyed this.

This is great.

We really appreciate it, man.

Thanks Thanks for coming on.

Happy to do it.

Let's do it again sometime.

Wait, before you cut off, do you want us to promo your podcast?

Oh, sure.

That'd be great.

Our podcast is the National Security Law Podcast.

You know, great title.

And, you know, me on Twitter is at Steve underscore blog.

Cool.

Excellent.

Great.

Thank you so much.

Thanks a lot.

Next week,

Exxon Shipping Company v.

Baker.

I imagine you can hear that Exxon is part of a Supreme Court case and understand fundamentally what's about to happen.

Right, right.

They dumped a bunch of fucking oil into the ocean and guess what?

They don't feel they're particularly responsible.

Don't worry though, Supreme Court to the rescue.

5-4 is presented by Westwood One and Prologue Projects.

This episode was produced by Kacha Kumkova with editorial oversight by Leon Napok and Andrew Parsons.

Our artwork is by Teddy Blanks at ChipsNY, and our theme song is by Spatial Relations.

From the Westwood One Podcast Network.