582 U.S. ____ (2017)
JESUS MESA, Jr., et al. JESUS C. HERNANDEZ, et al., PETITIONERS
OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
case involves a tragic cross-border incident in which a
United States Border Patrol agent standing on United States
soil shot and killed a Mexican national standing on Mexican
soil. The three questions presented concern whether the
parents of the victim of that shooting may assert claims for
damages against the agent under Bivens v. Six Unknown
Fed. Narcotics Agents, 403 U.S. 388 (1971); whether the
shooting violated the victim's Fourth Amendment rights;
and whether the agent is entitled to qualified immunity on a
claim that the shooting violated the victim's Fifth
this case was resolved on a motion to dismiss, the Court
accepts the allegations in the complaint as true for purposes
of this opinion. See Wood v. Moss, 572 U.S. ___, ___
(2014) (slip op., at 12). On June 7, 2010, Sergio Adrian
Hernandez Giiereca, a 15-year-old Mexican national, was with
a group of friends in the cement culvert that separates El
Paso, Texas, from Ciudad Juarez, Mexico. Now all but dry, the
culvert once contained the waters of the Rio Grande River.
The international boundary runs down the middle of the
culvert, and at the top of the embankment on the United
States side is a fence. According to the complaint, Hernandez
and his friends were playing a game in which they ran up the
embankment on the United States side, touched the fence, and
then ran back down. At some point, Border Patrol Agent Jesus
Mesa, Jr., arrived on the scene by bicycle and detained one
of Hernandez's friends in United States territory as the
friend ran down the embankment. Hernandez ran across the
international boundary into Mexican territory and stood by a
pillar that supports a railroad bridge spanning the culvert.
While in United States territory, Mesa then fired at least
two shots across the border at Hernandez. One shot struck
Hernandez in the face and killed him. According to the
complaint, Hernandez was unarmed and unthreatening at the
Department of Justice investigated the incident. The
Department concluded that the shooting "occurred while
smugglers attempting an illegal border crossing hurled rocks
from close range at a [Customs and Border Patrol] agent who
was attempting to detain a suspect." Dept. of Justice,
Office of Public Affairs, Federal Officials Close
Investigation Into the Death of Sergio Hernandez-Guereca
(Apr. 27, 2012), online at http://www.justice,
(as last visited June 23, 2017). "[O]n these particular
facts, " the Department determined, "the agent did
not act inconsistently with [Customs and Border Patrol]
policy or training regarding use of force."
Ibid. The Department also declined to bring federal
civil rights charges against Mesa. In the Department's
view, there was insufficient evidence that Mesa "acted
willfully and with the deliberate and specific intent to do
something the law forbids, " and, in any event,
Hernandez "was neither within the borders of the United
States nor present on U.S. property, as required for
jurisdiction to exist under the applicable federal civil
rights statute." Ibid. The Department expressed
regret for the loss of life in the incident and pledged
"to work with the Mexican government within existing
mechanisms and agreements to prevent future incidents."
parents-brought suit. Among other claims, petitioners brought
claims against Mesa for damages under Bivens,
alleging that Mesa violated Hernandez's rights under the
Fourth and Fifth Amendments. The United States District Court
for the Western District of Texas granted Mesa's motion
to dismiss. A panel of the Court of Appeals for the Fifth
Circuit affirmed in part and reversed in part. The panel held
that Hernandez lacked any Fourth Amendment rights under the
circumstances, but that the shooting violated his Fifth
Amendment rights. Hernandez v. United States, 757
F.3d 249, 267, 272 (2014); id., at 280-281 (Dennis,
J., concurring in part and concurring in judgment);
id., at 281 (DeMoss, J., concurring in part and
dissenting in part). The panel also found "no reason to
hesitate in extending Bivens to this new
context." Id., at 275. And the panel held that
Mesa was not entitled to qualified immunity, concluding that
"[n]o reasonable officer would have understood Agent
Mesa's alleged conduct to be lawful." Id.,
at 279. Judge DeMoss dissented in part, arguing that
Hernandez lacked any Fifth Amendment rights under the
circumstances. Id., at 281-282.
rehearing en banc, the Court of Appeals unanimously affirmed
the District Court's dismissal of petitioners' claims
against Mesa. The en banc Court of Appeals first held that
petitioners had failed to state a claim for a violation of
the Fourth Amendment because Hernandez was "a Mexican
citizen who had no 'significant voluntary connection'
to the United States" and "was on Mexican soil at
the time he was shot." Hernandez v. United
States, 785 F.3d 117, 119 (CA5 2015) (per
curiam) (quoting United States v.
Verdugo-Urquidez, 494 U.S. 259, 271 (1990)). As to
petitioners' claim under the Fifth Amendment, the en banc
Court of Appeals was "somewhat divided on the question
of whether Agent Mesa's conduct violated the Fifth
Amendment, " but was "unanimous" in concluding
that Mesa was entitled to qualified immunity. 785 F.3d, at
120. The en banc Court of Appeals explained that "[n]o
case law in 2010, when this episode occurred, reasonably
warned Agent Mesa" that "the general prohibition of
excessive force applies where the person injured by a U.S.
official standing on U.S. soil is an alien who had no
significant voluntary connection to, and was not in, the
United States when the incident occurred."
Ibid. Because the en banc Court of Appeals resolved
petitioners' claims on other grounds, it "did not
consider whether, even if a constitutional claim had been
stated, a tort remedy should be crafted under
Bivens." Id., at 121, n. 1 (Jones, J.,
concurring). Ten judges filed or joined five separate
concurring opinions. Id., at 121-143.
Court granted certiorari. 580 U.S. (2016). The Court now
vacates the judgment of the Court of Appeals and remands for
Court turns first to the Bivens question, which is
"antecedent" to the other questions presented.
Wood, 572 U.S., at ___ (slip op., at 11). In
Bivens, this Court "recognized for the first
time an implied right of action for damages against federal
officers alleged to have violated a citizen's
constitutional rights." Correctional Services Corp.
v. Malesko, 534 U.S. 61, 66 (2001). A Bivens
remedy is not available, however, where there are
"'special factors counselling hesitation in the
absence of affirmative action by Congress.'"
Carlson v. Green, 446 U.S. 14, 18 (1980) (quoting
Bivens, 403 U.S., at 396). In the decision recently
announced in Ziglar v. Abbasi, ante, p. ___, this
Court has clarified what constitutes a "special facto[r]
counselling hesitation." See ante, at 12-14,
17-23. "[T]he in- quiry, " the Court explains,
"must concentrate on whether the Judiciary is well
suited, absent congressional action or instruction, to
consider and weigh the costs and benefits of allowing a
damages action to proceed." Ante, at 12.
Court of Appeals here, of course, has not had the opportunity
to consider how the reasoning and analysis in Abbasi
may bear on this case. And the parties have not had the
opportunity to brief and argue its significance. In these
circumstances, it is appropriate for the Court of Appeals,
rather than this Court, to address the Bivens
question in the first instance. This Court, after all, is one
"'of review, not of first view.'"
Expressions Hair Design v. Schneiderman, 581 U.S.
___, ___ (2017) (slip op., at 10) (quoting Nautilus, Inc.
v. Biosig Instruments, Inc., 572 U.S. ___, ___ (2014)
(slip op., at 14)).
respect to petitioners' Fourth Amendment claim, the en
banc Court of Appeals found it unnecessary to address the
Bivens question because it concluded that Hernandez
lacked any Fourth Amendment rights under the circumstances.
This approach-disposing of a Bivens claim by
resolving the constitutional question, while assuming the
existence of a Bivens remedy-is appropriate in many
cases. This Court has taken that approach on occasion. See,
e.g., Wood, supra, at(slip op., at 11). The Fourth
Amendment question in this case, however, is sensitive and
may have consequences that are far reaching. It would be
imprudent for this Court to resolve that issue when, in light
of the intervening guidance provided in Abbasi,
doing so may be unnecessary to resolve this particular case.
respect to petitioners' Fifth Amendment claim, the en
banc Court of Appeals found it unnecessary to address the
Bivens question because it held that Mesa was
entitled to qualified immunity. In reaching that conclusion,
the en banc Court of Appeals relied on the fact that
Hernandez was "an alien who had no significant voluntary
connection to . . . the United States." 785 F.3d, at
120. It is undisputed, however, that Hernandez's
nationality and the extent of his ties to the United States
were unknown to Mesa at the time of the shooting. The en banc
Court of Appeals therefore erred in granting qualified
immunity based on those facts.
doctrine of qualified immunity shields officials from civil
liability so long as their conduct 'does not violate
clearly established . . . constitutional rights of which a
reasonable person would have known.'" Mullenix
v. Luna, 577 U.S. ___, ___ (2015) (per curiam)
(slip op., at 4-5) (quoting Pearson v. Callahan, 555
U.S. 223, 231 (2009)). The "dispositive inquiry in
determining whether a right is clearly established is whether
it would be clear to a reasonable officer that his conduct
was unlawful in the situation he confronted."
Saucier v. Katz, 533 U.S. 194, 202 (2001). The
qualified immunity analysis thus is limited to "the
facts that were knowable to the defendant officers" at
the time they engaged in the conduct in question. White
v. Pauly, 580 U.S. ___, ___ (2017) (per curiam)
(slip op., at 3). Facts an officer learns after the incident
ends- whether those facts would support granting immunity or
denying it-are not relevant.
and the Government contend that Mesa is entitled to qualified
immunity even if Mesa was uncertain about Hernandez's
nationality and his ties to the United States at the time of
the shooting. The Government also argues that, in any event,
petitioners' claim is cognizable only under the Fourth
Amendment, and not under the Fifth Amendment. This Court
declines to ...