Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 09/17/2021
E.g., 09/17/2021

This case arose from the cross-border shooting of a 15-year-old Mexican child by a U.S. border patrol agent. The parents of the child sued the agent in federal court for Fourth and Fifth Amendment violations pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Bivens found an implied cause of action for constitutional violations by federal officers where no statutory authorization for damages exists. The scope of a Bivens claim has been limited by the Supreme Court over time, and separation of powers concerns caution against extending Bivens to new context, a “disfavored judicial activity.” See Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). In determining whether a Bivens remedy is available, the court first determines whether the claim involves new context. New context is defined broadly. “We regard a context as ‘new’ if it is different in a meaningful way from previous Bivens cases decided by this Court.” Slip op. at 10. If the claim presents new context, the court then determines whether there is a “reason to pause before applying Bivens to new context or to a new class of defendant . . .” Id.

Bivens has been applied to Fourth and Fifth Amendment claims before in the context of illegal search and arrest in New York City, and to sex discrimination by a congressman in Washington, D.C. A cross- border shooting, however, was new context according to the majority. “There is a world of difference between those claims and petitioners’ cross-border shooting claims, where ‘the risk of disruptive intrusion by the Judiciary into the functioning of other branches’ is significant.” Id. at 11. Here, the court found that the foreign policy implications of extending Bivens to a cross-border shooting was factor against extending the remedy. “The political branches, not the Judiciary, have the responsibility and institutional capacity to weigh foreign-policy concerns.” Id. at 12 (citation omitted). National security concerns were another factor against extension of Bivens to this context. “Since regulating the conduct of agents at the border unquestionably has national security implications, the risk of undermining border security provides reason to hesitate . . .” Id. at 17. Further, that Congress has limited the ability to recover damages from the actions of U.S. agents while abroad also indicates the need for caution. It is the role of Congress, not the courts, to fashion damages remedies, and Congress has indicated its intention to limit judicial remedies for acts of federal officers abroad by repeatedly refusing to authorize such causes of action. Concluding, the majority observed:

In sum, this case features multiple factors that counsel hesitation about extending Bivens, but they can all be condensed to one concern—respect for the separation of powers. . .Congress’s decision not to provide a judicial remedy does not compel us to step into its shoes. . .When evaluating whether to extend Bivens, the most important question ‘is who should decide’ whether to provide for a damages remedy, Congress or the courts? The correct ‘answer most often will be Congress.’ That is undoubtedly the answer here. Id. at 22-23.

The Fifth Circuit’s judgment dismissing the suit was therefore affirmed by 5-4 vote. Chief Justice Roberts, and Justices Thomas, Gorsuch, and Kavanaugh joined the majority opinion. Justice Thomas, joined by Justice Gorsuch, wrote separately to advocate that Bivens be overruled altogether.

Justice Ginsberg authored a dissent, joined by Justices Breyer, Sotomayor, and Kagan. According to the dissent, this was not new context and there were no justifications sufficient to deny a Bivens remedy. “Rogue U.S. officer conduct falls within a familiar, not ‘new,’ Bivens setting.” Id. at 30. The plaintiffs have no other possible recourse, and this case was “not an isolated incident.” The dissenting justices would have reversed and allowed the claim to proceed. Justice Ginsberg concluded:

In short, it is all too apparent that to redress injuries like the one suffered here, it is Bivens or nothing. I resist the conclusion that ‘nothing’ is the answer required in this case. Id. at 42 (Ginsberg, J., dissenting).

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