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119 Mich. L. Rev. Online 1 (2020)

handle is hein.journals/mlro119 and id is 1 raw text is: 








                 HERNANDEZ, BIVENS, AND
         THE SUPREME COURT'S EXPANDING
         THEORY OF JUDICIAL ABDICATION


                            William J. Aceves*


                            INTRODUCTION
    Sergio Adrian Hernandez  Guereca, a fifteen-year-old Mexican child, was
playing with his friends in Mexico when  he was shot in the face by a U.S.
Border Patrol Agent standing in the United States. Sergio died on the con-
crete ground where he fell.
    In Hernandez  v. Mesa, Sergio's family brought a federal lawsuit seeking
to hold Agent Jesus Mesa, Jr. responsible for the death of their son.' They al-
leged Agent Mesa  had violated Sergio's constitutional rights and based their
claim on the Bivens doctrine.' In Bivens v. Six Unknown Named   Agents of
Federal Bureau of Narcotics, the Supreme Court established a limited right to
sue federal government  officials for constitutional violations.' Historically,
damages  remedies had long been recognized for an invasion of personal in-
terests in liberty.4 The Court noted in Bivens that federal courts maintained
a unique  role in protecting the Bill of Rights.' Damages remedies would
serve that purpose by deter[ring] individual federal officers from commit-
ting constitutional violations.6 Since 1971, Bivens has allowed federal courts
to acknowledge a cause of action against federal officials for violations of cer-
tain constitutional rights.7 Sergio's family argued that Agent Mesa should be
civilly liable under the Bivens doctrine for violating the Fourth and Fifth
Amendments   because he shot and killed Sergio without cause.'
    In a 5-4 decision, the Supreme Court  rejected the lawsuit, holding the
Constitution provided Sergio's family no such remedy.9 Given  the Roberts


        William J. Aceves is the Dean Steven R. Smith Professor of Law at California West-
ern School of Law. Regina Calvario, Sara Emerson, Lillian Glenister, Varun Sabharwal, and
Stacey Zumo provided excellent research assistance. I am grateful to Jessica Fink for her very
helpful comments. All errors are my own.
     1. 140 S. Ct. 735 (2020).
     2. Hernandez, 140 S. Ct. at 740.
     3. 403 U.S. 388 (1971) (establishing an implied right of action for violations of the
Fourth Amendment).
    4.  Bivens, 403 U.S. at 395.
    5.  Id. at 407 (Harlan, J., concurring in the judgment).
    6.  Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001).
    7.  See, e.g., Carlson v. Green, 446 U.S. 14 (1980) (establishing an implied right of action
for violations of the Eighth Amendment); Davis v. Passman, 442 U.S. 228 (1979) (establishing
an implied right of action for violations of the Fifth Amendment).
    8.  Hernandez v. Mesa, 140 S. Ct. 735, 740 (2020).
    9.  Id. at 739.

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