00:00 [Archival]: We'll hear argument next in 17-1678 Hernandez v. Mesa.

[music]

00:05 Leon Neyfakh: Hey everyone. This is Leon Neyfakh from Fiasco and Slow Burn. On today's episode of 5-4, Peter, Rhiannon and Michael are discussing Hernandez v. Mesa, case involving a federal agent who shot and killed a Mexican teenager at the US-Mexico border while standing on US soil.

00:26 [Archival]: The US Supreme Court will decide whether the parents of Sergio Hernandez Güereca, a 15-year-old Mexican teen killed by a border patrol agent can sue the US agent in US federal court.

00:39 Leon Neyfakh: Later in the episode, the hosts talk to a special guest, Steve Vladeck, the lawyer who argued the case on behalf of the teenager's family.

00:47 [Archival] 1: Mr. Vladeck.

00:48 Steve Vladeck: Mr. Chief Justice, may it please the Court.

00:52 Leon Neyfakh: This is 5-4, a podcast about how much the Supreme Court sucks.

01:00 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have eaten away at America, like maggots on a rotten carcass.

[chuckle]

01:12 Peter: That was a little intense, that one, I'm sorry.

01:13 Rhiannon: It works.

[laughter]

01:16 Peter: I feel like it devolved to a pretty dark place.

01:20 Michael: He had input from the team on that one and that's what happens when Rhiannon and I get involved.

[laughter]

01:26 Peter: That's right. I am Peter, twitter as The Law Boy. I am here with Michael.

01:31 Michael: Hey, everybody.

01:34 Peter: And Rhiannon.

01:34 Rhiannon: What up? Hi.

01:35 Peter: 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 gotta be one of the worst years so far. Right?

01:49 Rhiannon: Definitely.

01:50 Michael: It's up there.

01:51 Peter: And coming up a little bit later after we talk about the case a bit, Professor Steven Vladeck, 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.

02:10 Rhiannon: That's right.

02:10 Peter: They're talking about the law. They're experts. You have to respect us, I think, is the bottom line.

[chuckle]

02:16 Rhiannon: That's right.

02:18 Michael: No more talking shit to your friends.

02:21 Peter: Next week, Clarence Thomas.

[laughter]

02:25 Rhiannon: Imagine.

02:26 Peter: And I should say, we're gonna 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...

02:47 Rhiannon: Yes.

02:47 Peter: Against police brutality. You know, these things are tied up in a singular culture, even though there are differences between the Border Patrol, which we're gonna talk about today and 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.

03:15 Michael: Right.

03:15 Rhiannon: Yeah, it's a righteous culture and it's a violently defensive culture as well.

03:21 Michael: 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 when there are like...

03:31 Rhiannon: God, yeah.

03:32 Michael: Hundreds of thousands, if not millions of people in all 50 states and abroad marching in the streets everyday, that somehow might be a bigger story. But nonetheless, in the US, we've seen how the pandemic sort of exposes racial inequality where it's minority communities that have taken the hardest hit.

03:54 Rhiannon: Right.

03:55 Michael: 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...

04:08 Rhiannon: Right.

04:08 Michael: 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 inhumane in policing, which leads to 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.

04:47 Rhiannon: That was beautiful. So I think what this case, Hernandez v Mesa can kind of give an example of, is people might wanna 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 doing that, because that is their purpose.

06:03 Peter: Yeah and we're gonna talk in this episode about a lot of technical, even some procedural reasons why this case is tossed out.

06:14 Rhiannon: Right.

06:15 Peter: 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 have prosecutors who initially don't bring charges against people like the murderers of George Floyd and are only bringing charges after public pressure and then have to escalate the charges after more public pressure.

06:49 Rhiannon: Right.

06:50 Peter: 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.

07:12 Michael: That's right.

07:12 Rhiannon: Right. Any kind of liability.

07:15 Peter: Yeah.

07:15 Michael: Right.

07:17 Peter: 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?"

[laughter]

07:37 Peter: 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 v. Amnesty International episode that we talked about how the court will often go to lengths to toss out cases it doesn't like on technicalities rather than confront the merits of the case and this is another one.

08:06 Rhiannon: Yeah.

08:07 Peter: 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's 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.

08:26 Rhiannon: Exactly.

08:27 Peter: 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.

08:34 Rhiannon: Right.

08:34 Peter: 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.

08:46 Michael: Yeah.

08:47 Peter: 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? V. Six unnamed federal agents?

09:03 Rhiannon: Yeah, something like that.

09:04 Peter: The Supreme Court held it, 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 roll back 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.

09:34 Rhiannon: Right.

09:38 Peter: Rhi, walk us through this unfortunate set of facts, that's what a lawyer would describe it, right?

09:45 Rhiannon: Yeah or PR. PR for border patrol.

09:46 Peter: Right.

09:47 Rhiannon: Thank you.

09:48 Michael: Tragic.

[chuckle]

09:49 Rhiannon: Right. Yeah, no, it's another awful case that we bring you this week.

[chuckle]

09:56 Rhiannon: We begin this parade of horror in June 2010 on the US-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 Borderplex. It's a trans border agglomeration of nearly three 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-check points and that kind of thing. On the American side, this is mostly done by border patrol. The purpose of border patrol is to enforce US regulations and all that bullshit, International Trade, customs and immigration, [chuckle] which is to say like border patrol... These are federal cops, right?

11:01 Michael: Right.

11:02 Rhiannon: And you bet your ass, they're just as dumb and self-important and sadistic as state cops are.

11:06 Michael: They have two main functions, which is making sure the proper tax is levied on your TV as it's coming through port.

11:14 Rhiannon: Yeah.

11:15 Michael: And making sure Mexicans don't cross the border.

11:18 Rhiannon: Yeah, that's correct.

11:19 Michael: This is a big one.

11:21 Rhiannon: 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. A 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 US illegally. Many witnesses though, say that this is just not true.

12:31 Rhiannon: 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, 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's statement that's released directly after this incident said that Agent Mesa was "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.

13:14 Peter: Sorry, hold on. You said "Also." Did the cell phone footage show that they weren't throwing rocks?

13:18 Rhiannon: Oh, I guess I just said that many witnesses said that this wasn't true about the kids trying to get into the US.

13:25 Peter: Oh, got it, got it, got it.

13:26 Michael: Right, right, right.

13:27 Peter: Okay.

13:27 Michael: Yeah.

13:29 Rhiannon: Agent Mesa, a Federal law enforcement officer is standing on the US side of the border and the children are on the other side of the border in Mexico, about 60 feet away.

13:38 Michael: By the way, it's worth noting that this agent was on a bicycle.

13:43 Rhiannon: Beautiful. You can't make this up...

13:46 Peter: God, such a vivid image. It's like this guy just rolling through the desert on his little BMX with like a fucking assault rifle slung over his shoulder...

13:54 Michael: Right.

13:54 Peter: And some kids are like, "Hey, you fucking loser!" and he's like, "I'm gonna kill those fucking kids."

[laughter]

14:00 Rhiannon: Oh, 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?

14:11 Peter: I'm sorry, I'm just thinking of him. Those kids have made fun of my bike for the last time.

[laughter]

14:18 Rhiannon: Yes.

14:21 Michael: Just pedaling up, those fucking kids. Oh, God.

14:25 Rhiannon: Yeah. You know what really pisses me off and got me super mad today, it's the whole militarization of the police and 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.

14:37 Peter: Yeah, yeah.

14:38 Rhiannon: You know what I mean?

14:38 Peter: Right.

14:39 Rhiannon: 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 v. 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.

15:37 Peter: So, to talk about the law that applies here a little bit. Like I mentioned, there's a case from the early 1970s, there's 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.

15:56 Rhiannon: Right.

15:57 Peter: 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 there's no law, the right to sue federal agents for constitutional violations is implied by the Constitution itself, right?

16:37 Rhiannon: Right.

16:38 Peter: 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"

16:49 Rhiannon: Yes.

16:49 Michael: For money, damages?

16:49 Peter: For cash. For sweet...

[laughter]

16:53 Michael: For that sweet, sweet cash.

16:54 Rhiannon: Yes.

16:55 Michael: Right, because if a cop stops and frisks you illegally 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 I guess they're not a court and then maybe your case gets dropped. But if a cop just arrests you, there's no sort of comparable relief available. 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."

17:37 Rhiannon: 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, "Power 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 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.

18:15 Michael: Right.

18:16 Peter: Right. And 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 "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.

18:42 Rhiannon: Right.

18:44 Peter: So, 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.

18:58 Rhiannon: Right.

19:00 Michael: And so one of the preliminary questions with Bivens claims is whether the case is "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 Bivens.

19:19 Rhiannon: Yeah.

19:20 Michael: By describing any new case as breaking new ground and expanding the law and blah, blah, blah, and we wouldn't wanna do any of that.

19:25 Peter: Right and what they would do is basically say, "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."

19:40 Rhiannon: Right.

19:40 Peter: "The Border Patrol agent who shot him was, but the kid was standing in Mexico, and this context requires close examination," and then they would just find whatever they could as a reason to toss it out and say that it was different from the prior context.

19:56 Michael: Right.

19:57 Peter: 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?

20:09 Michael: Right. And so the majority here says, "Duh, in Bivens, everything happened on US soil, right? The officer was in US oil, the victim was on US soil, it was all on US soil. But here, the kid was in Mexico and like, that's a new context."

20:25 Rhiannon: Right.

[chuckle]

20:25 Michael: Are you fucking kidding me? Duh... And the dissent is like, "Look, the officer in both cases was on US soil, which is what matters. Right? It's a US officer exercising power granted to him by the US Government on US soil."

20:42 Rhiannon: Right.

20:42 Michael: And pretty much everyone agrees that if the kid were like a few feet closer, we're talking literally a matter of feet, Bivens would govern. If you were on the US side of the border, a little bit closer in the culvert, Bivens would govern.

20:54 Rhiannon: Right and the parties, in fact agreed to that.

20:57 Michael: Yeah.

20:58 Rhiannon: I mean, the government says that that is true, that's not a liberal interpretation, Border Patrol says that's true.

21:04 Peter: That's right. The lawyers admitted it in oral argument.

21:05 Rhiannon: Exactly.

21:05 Peter: Yeah.

21:06 Michael: And so how can the kid being a few feet further be a meaningfully different context that totally changes the whole... What's the word I wanna use? Character of the claim. Right?

21:20 Rhiannon: Yeah, yeah.

21:21 Michael: But the majority is, 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.

21:31 Rhiannon: Right.

21:31 Peter: 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 US side of the border, a few feet away, his family could sue. And the court sort of uses this border distinction, 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 was 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.

22:13 Rhiannon: Right.

22:15 Peter: 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. Right? Alito says, "Look, both countries have legitimate interest and it's not our job to arbitrate between those nations." But Mexico filed a brief in this case...

22:39 Rhiannon: Yeah.

22:40 Peter: Expressly stating that they want a remedy here. So, declaring that there isn't a remedy here is arbitrating between the nations.

22:48 Michael: Right.

22:49 Rhiannon: Exactly.

22:51 Peter: 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 what's he actually talking about here?

23:04 Rhiannon: Right.

23:05 Peter: The question of whether someone can recover damages from someone else can't be answered by the executive branch, period.

23:10 Michael: Right.

23:10 Peter: And part of what he says here is that litigation would embarrass our government abroad. [chuckle]

23:20 Michael: Right.

23:20 Rhiannon: God.

23:20 Peter: And, I mean, "Come on, man." First of all, in my heart, my initial instinct was like, obviously America can't be further embarrassed at this stage, right?

23:34 Rhiannon: Right.

23:34 Peter: I mean we're at maximum embarrassment at all times, 100%.

[laughter]

23:37 Rhiannon: That's right.

23:38 Peter: We're maxing out...

23:39 Michael: Yes.

23:40 Rhiannon: Exactly.

23:42 Peter: Just a top of the bar. But also if you can stop a judicial proceeding because it's potentially embarrassing to America, that would stop all judicial proceedings, I think maybe...

[laughter]

23:54 Rhiannon: Yeah, a lot of the big ones.

23:56 Peter: A lot of them.

[laughter]

24:00 Peter: Maybe I'm exaggerating a little bit...

24:01 Michael: Yeah.

24:01 Peter: But we're maybe like 85% just grind to a halt.

[laughter]

24:02 Peter: That can't be the standard. If you could just ban things because they're too embarrassing to America, Samuel Alito wouldn't be able to write opinions.

24:11 Rhiannon: Yeah, 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. Maybe actually, some legal accountability would help what foreign nations think about the United States. And so, 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 US law and tons of crimes have components that technically cross the border, but if the fundamental question is whether there's a violation of US law, is that really a foreign policy issue?

24:57 Peter: Right. And you can't predicate your defense or claim that your crime is totally okay, because an aspect of it crossed a border.

25:06 Rhiannon: Exactly.

25:07 Peter: You can launder money in the fucking Caymans and be like, "Well, this is more of a foreign policy issue, so you can't get me in trouble for it."

25:13 Rhiannon: Right.

25:14 Michael: Right. And look, there's no real assertion here that the Border Patrol agent was acting pursuant to CBP policy, and the court sort of trying to dance around this by saying that CBP didn't really sanction him or whatever, but look, he's clearly violating policies and procedures, which means it can't implicate foreign policy, holding him accountable for his violations of actual US policy, actual US procedures and actual US law. And if this kid were American citizen, if this kid were 10 feet closer, this case would come out very different. But this guy got fucking lucky, essentially, 'cause he didn't know this kid was or was not an American. And this is just my guess, but if you're fucking taking pot shots at kids, I don't think he was strategically waiting till they cross the border before he took his shot.

26:18 Rhiannon: Right. That's a really good point. And I think also we should be clear about what this argument... The argument that 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 US 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 on this."

26:45 Peter: 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 has been a constitutional violation.

27:03 Michael: [chuckle] Yeah, and in terms of incentives, if you have to think about it, if we want there to be any incentives at all for our border patrol agents to not just be firing at kids, we're running around in this sort of in-between land. Like we talk about crossing the border, but this culvert is sort of like a patrolled area that's sort of a blend. It's like sort of a gradient.

27:27 Rhiannon: Absolutely, yeah.

27:30 Michael: And there needs to be some disincentive. If this is not US policy, if the US policy is, don't just shoot kids, and Border Patrol agents are doing it and we wanna disincentive them, this is precisely how you do it. So this is the Supreme Court weighing in and saying, "No, that's actually fine. They should be able to do that. And if we think that's wrong, like that's for somebody else to decide. That's not us." They're fucking passing the buck on the Constitution.

28:02 Peter: 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." 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." And the whole section is predicated upon Alito's opinion about the significance of illegal immigration from Mexico. He talks about stopping drug traffickers and cartels and terrorists and shit, and it's like, you know this is about some fucking psycho agent doming a 15-year-old, right? The cartels aren't involved, dude. This isn't Narcos, this is some nutjob shooting a kid. There wasn't any 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 we can't allow them to be sued." Incoherent...

29:18 Rhiannon: Bullshit.

29:19 Peter: 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.

29:30 Rhiannon: Exactly.

29:30 Peter: 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. 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.

[laughter]

29:58 Peter: It's just absurd to think that you can't hold someone liable in this sort of situation. He's not acting in his official duties, he's not carrying out border patrol responsibilities.

30:11 Rhiannon: His boss didn't tell him to do it.

30:13 Peter: He's just getting into a fucking road rage beef with some child.

30:17 Rhiannon: Exactly.

30:19 Michael: And I don't wanna get too technical, but 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. If Hernandez won on this, then there's the dispute about the extra territorial application of the Fourth Amendment. And there's precedent on that with the big cases like habeas corpus applying at Guantanamo Bay. And there would be a lot of argument on that, and there's a briefing on that in this case, assuming that they might get to that issue. But we're not even talking about that, we're talking about like, can you even fucking sue? Can you even get to that question of whether or not the Fourth Amendment applies in this culvert. And the court is like, "No, you don't even get to sue."

31:03 Rhiannon: Yeah, the question is, does this family get a day in court in the US? And I wanna 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, 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 here? I always go back to like, who is policing the police? And during oral argument, the conservative justice is 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 as a check on the executive.

31:51 Rhiannon: Any meaningful legal accountability system requires that the court take seriously its duty to police the police, and that was the point of Bivens to say that even if there isn't a statute giving you this legal avenue for accountability, the courts are gonna 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.

32:24 Peter: And 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 beside ICE, 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.

33:06 Rhiannon: Exactly, yeah.

33:07 Peter: 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, "Maybe that kid was throwing rocks," and that was the end of the fucking investigation.

33:22 Rhiannon: 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."

33:42 Michael: Just some kids cowering behind a fucking pillar.

33:43 Peter: Alright, before we get to our interview with Professor Vladeck, I wanna make a couple of points. There is a deep irony here. 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.

34:29 Peter: 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. This is never more obvious than when Alito is writing an opinion for the simple reason that Alito is genuinely a hack, just like at his core, a hack who is politics first, ideology forward. Where Roberts is capable of stepping back and thinking of how to achieve his end 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 particular instances of like, I don't wanna say intellectual laziness, it's his acknowledgement that he doesn't need to do more because they've got the five votes.

35:31 Rhiannon: Yeah, he doesn't have to try hard.

35:33 Peter: And I think it may be the last thing I wanna 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.

35:58 Rhiannon: 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 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.

36:31 Peter: And Conservatives view rights as conceptual, like almost like a theory. 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 an unfortunate technicality." 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.

37:31 Peter: 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 drop out, 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. 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.

38:26 Rhiannon: Exactly.

38:27 Peter: 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 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 Steven Vladeck. Steve, welcome. Thanks for coming on.

38:54 Steve Vladeck: I'm honored, long-time fellow traveler on Twitter, first time caller.

[chuckle]

38:58 Rhiannon: Amazing. We're so happy to have you.

39:00 Peter: We are. Steve has a special perspective on this case, in that he argued it.

[laughter]

39:05 Steve Vladeck: Whoops.

39:09 Peter: Yeah. Way to go, Steve. You couldn't convince Sam Alito. You really dropped the ball, dude.

39:17 Steve Vladeck: I'm like the goalie and everyone's just chanting, "It's all your fault."

[laughter]

39:26 Peter: So, we've been bouncing this case around and we have a bunch of high 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 wanna 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 the guy who was in the trenches, is that what you feel and what are your thoughts on that generally? Do you feel like that's where they really dropped the ball?

40:25 Steve Vladeck: No, I think the line that really jumps out is Justice Alito is reciting the facts in his majority opinion and he says, "There's disagreement about what happened."

40:35 Rhiannon: Right.

40:36 Peter: Right.

40:36 Steve Vladeck: When I'm reading the opinion, they come down and I'm like, "What the hell? Disagreement is not a posture of this case, at this stage, Justice Alito."

40:45 Rhiannon: Right, yeah.

40:46 Michael: Right.

40:47 Steve Vladeck: But that had been there, Peter, that had been in the case all along the Fifth Circuit, in it's En banc opinion, on remand, talked about how there was dispute as to the facts, the Justice Department in it's Amicus Brief in the Supreme Court, Agent Mesa in his briefs kept harping upon the facts, as they portray them as opposed to how they are portrayed in the complaint. I don't think it mattered in the end.

41:07 Michael: Yeah.

41:07 Steve Vladeck: I don't think that the decision came out the way it did, because the court didn't just take the facts as alleged in the complaint as true.

41:14 Michael: Right.

41:14 Steve Vladeck: 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.

41:26 Rhiannon: Yes.

41:26 Michael: Right.

41:28 Steve Vladeck: And they can just completely ignore them. 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, 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 US argued as a friend-of-the-court. Usually the Supreme Court says, "We can't just rely on what the Amicus says. Oh, unless it's the federal government and we want to."

41:51 Rhiannon: Right, right.

41:52 Peter: Right, right. So, there is 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?

42:06 Steve Vladeck: Yeah, so one of the things that never makes it into the Supreme Court decision this time, although it did, I think at 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.

42:17 Rhiannon: Yeah.

42:19 Steve Vladeck: I'm not gonna 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 Mesa was not being attacked at the time he shot and killed Sergio Hernandez. And so, when we talk about 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 litigation. The allegations in a well-plead complaint are supposed to be taken as true because we do facts after we do the motion to dismiss.

42:58 Rhiannon: Right.

42:58 Steve Vladeck: But to everything we actually know is inconsistent with the version that the Justice Department and Agent Mesa keep putting out as their version.

43:09 Peter: Right.

43:10 Steve Vladeck: And so it's a little bit of a heads we lose, tails you win. Right? Because if we actually were gonna talk about what's not in the record, it only reinforces the claims, but we're not supposed to be talking about what's on 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 Is and crossing the procedural Ts, that the facts can be portrayed as disputed when one, that's not a legally available argument at this point, and two, if we're gonna go outside the record, the stuff outside the record actually is pretty bad, for Agent Mesa, not pretty good.

43:51 Peter: Right.

43:51 Michael: Right.

43:54 Peter: Before you read the opinion, when you saw it was Alito, you knew right? I mean...

44:00 Steve Vladeck: Oh, I mean...

[laughter]

44:02 Steve Vladeck: I moonlight as CNN's Supreme Court analyst, and so every time there's a hand down day, we all get on a conference call.

44:09 Michael: Right.

44:10 Steve Vladeck: And Ariane de Vogue, who's the fantastic lead supreme court reporter for, I'm pretty sure 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, when she says, "It's Steve's case... "

44:26 Rhiannon: Oh my God.

44:28 Peter: As opposed to Hernandez and it's by Justice Alito. I'm like, "Well, I'm done."

[laughter]

44:28 Rhiannon: Right. That's all I need to know.

44:33 Steve Vladeck: I have a friend who was in the court for the hand down, and apparently 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 exhaled. Alito was not a vote I was counting on.

44:50 Peter: Yeah. Were you pitching to a certain conservative, and maybe, and generally do you think about your arguments in those terms? Like, "Maybe we have an angle on Gorsuch here." Or do you just make the case and hope that it sticks with someone?

45:05 Steve Vladeck: We filed the serve petition in this case 12 days before Kennedy announced his retirement, and so I think the petition was very much pitched at Kennedy, Kennedy who had written the majority opinion for the court in Abbasi, 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 and Alito and Thomas were, that was just a given. We thought we didn't have much of a shot with Justice Kavanaugh, 'cause Justice Kavanaugh when he was on the DC circuit had written a concurring opinion in a Bivens case involving a US 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. 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 10 minutes into the argument where I was like, "Nope."

[laughter]

46:03 Michael: He has joined the liberals on some criminal... Defendant's rights stuff. So I could see how he could come into a purview as maybe a gettable vote in here where you're talking about accountability.

46:14 Steve Vladeck: Or at the very least a 1% chance is greater than a 0% chance. The other thing is it's not just... 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, and basically, "Let's just get rid of Bivens altogether." As opposed to the Alito, "No, no, no this case is especially bad."

46:40 Rhiannon: 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, perhaps the worst oral advocate ever to stand in front of the Supreme Court Justices. And so I was just wondering what your insight is, maybe commentary on that, but I think even to casual listeners it was obvious that the agent and the government, they don't have a good argument. They sound crazy, they can't answer basic questions that the Justices repeat several times, so why do the Justices build the argument for them anyway?

47:24 Steve Vladeck: Right. And yet they win.

47:25 S9: Mr. Chief Justice, may it 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 not, has declined, to provide a remedy.

47:46 Steve Vladeck: 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 think, very happy to not worry about procedural formalities when they're getting in the Court's way. I knew going in that it didn't matter how good or not Mr. Ortega was, that I was basically arguing against Jeff Wall, the Deputy SG. And I think Jeff is a very smart and savvy lawyer, and he knows that he doesn't have to convince six Justices, he has to convince five. And so he's gonna be very aggressive about staking out the position that he thinks is gonna attract the five he needs, and I think he did.

48:29 Steve Vladeck: To the broader question of... I'm obviously hopelessly biased, not just because I represented the petitioners but because then 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... 1980-2000, the court is narrowing Bivens, and some of it's dubious some of it's not, but it's not killing Bivens. But ever since the Malesko 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, "That we should stop doing the same for Constitutional remedies," and it's just...

49:12 Steve Vladeck: To be frank, I blame Justice Kennedy for a lot of that 'cause 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 [49:24] ____. Those cases don't all come out five to four, but they're written the way they are because Kennedy is idiosyncratic about Bivens. So when he leaves it's very easy for the conservatives to say, "We were already most of the way there, let's just take one more step."

49:38 Peter: What do you think the consequences of narrowing Bivens are? And what do you think the consequences of the Thomas Gorsuch position of the effective abolition of Bivens are?

49:49 Steve Vladeck: Yeah, we spend a lot of time when we get people in law school trying to teach them about the difference between first-order and second-order rules. The first-order rule is the substantive rule, 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? And Bivens is the quintessential second-order rule. When a federal officer violates the Constitution, Congress, for better or for worse, has never actually provided what we call a clause 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 don't wanna 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.

51:00 Steve Vladeck: 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 the rights or retrospectively for damages because the violation has ended. That tradition is rich. It's recognized by no less of 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 Court says, "We'll take the federal remedy."

52:01 Peter: Right. 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 where you have someone who's not a citizen, who is across a border a little bit, whatever it might be? Is there a really coherent and consistent way to apply the law in these situations?

52:27 Steve Vladeck: Well, yes, I'd start by applying it. 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 boarder." 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 side step what really ought to be some pretty important constitutional questions one way or the other. 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, "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 that seems to me much more consistent with the court's function, which is to sort of settle the meaning of the Constitution in live cases.

53:32 Steve Vladeck: My rebuttal in the Hernandez argument was basically trying to point out that a world with no Bivens 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... If we had ended up fighting about the 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, versus say in... 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.

54:19 Peter: I think that's a good place to wrap, guys. I think, right?

54:20 Rhiannon: Yeah, I think that's great.

54:24 Michael: This was a lot of fun. I really enjoyed this. Yeah.

54:25 Rhiannon: Yes. This was great.

54:26 Peter: Yeah. We really appreciate it, man. Thanks for coming on.

54:28 Steve Vladeck: Happy to do it. Let's do it again some time.

54:29 Michael: Wait. Before you cut off, do you want us to promote your podcast?

54:32 Steve Vladeck: Oh, sure. That'd be great. Our podcast is The National Security Law Podcast. Great title. And me on Twitter is @steve_vladeck.

54:41 Peter: Cool.

54:42 Michael: Excellent. Great.

54:42 Rhiannon: We'll do it.

54:44 Michael: Thank you so much.

54:44 Rhiannon: Thanks a lot.

[music]

54:53 Peter: 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.

55:07 Rhiannon: Right, right.

55:09 Peter: 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.

55:22 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.

55:44 Leon Neyfakh: From the Westwood One Podcast Network.