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Abstract

Mexican national J.A. Rodriguez took ten bullets in the back on October 10, 2012. He was walking home, and his usual route happened to take him down a street that runs alongside the United States-Mexico border. The shots, fired by United States Border Patrol, came from United States territory without warning or provocation. Anywhere in the United States, the shooting victim would have a civil claim for relief under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics for constitutional violations committed by federal officers. The Ninth Circuit found that Rodriguez was entitled to Fourth Amendment protections under Bivens, but others, like Sergio Adriàn Hernàndez Guereca who was shot in the face by a Border Patrol agent standing in Texas and aiming over the border, have not been allowed such relief. The Supreme Court has granted certiorari to determine whether the duties incumbent upon federal agents under the Constitution extend to people on the other side of the border. This article argues that justice ought not to be constrained to man-made borders and the Court should accordingly resolve this split in favor of Rodriguez and Hernández by adopting the Ninth Circuit’s reasoning. The Ninth Circuit considered the new context raised by Rodriguez’s claim and fairly concluded that no special factors counseled against relief. Despite the “disfavored” nature of the remedy, the Ninth Circuit saw that justice demanded relief. Before the Court is an opportunity to reinvigorate Bivens and cure the stigma surrounding the cause of action in federal courts. This article argues that Bivens can and should be used more often to preserve the integrity of the Constitution, and that Hernandez v. Mesa presents the Court a ripe opportunity to do so.

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