The catastrophic rollout of President Trump's Executive Order banning travel to the United States from seven Muslim-majority countries produced jarring stories of harsh and abusive treatment by U.S. Customs and Border Protection officers.
For people watching events unfold on social media, and for those who demonstrated at international airports, the allegations were shocking - noncitizens with legal visas to enter the country were handcuffed, interrogated, detained for hours, and, in some cases, denied food and medicine.
Lawyers around the country have brought lawsuits seeking to stop the travel ban. And, fortunately, courts have acted quickly to do exactly that, at least on a preliminary basis. That, however, is not the end of the story.
The families and individuals who were subjected to such unjust treatment and whose traumatic experiences have led to untold harms are entitled to pursue legal remedies for violations of their constitutional rights - as courts have long recognized that constitutional protections extend to noncitizens. They would bring these suits under a Supreme Court decision from 1971 called Bivens v. Six Unknown Named Agents, which allows people harmed by federal officials to sue for monetary damages.
But their ability to do so could be at risk if the Trump administration has its way in a case now pending in the U.S. Supreme Court.
The case, Hernandez v. Mesa, is scheduled for argument on Feb. 21. It arises out of a tragedy:
In the summer of 2010, 15-year-old Sergio Hernandez, a citizen of Mexico, was playing with three friends on the Mexican side of the border at El Paso, Texas, when he was shot and killed by a Customs and Border Protection officer named Jesus Mesa. The Hernandez family sued Mesa for damages under Bivens, claiming that the unprovoked shooting violated the Fourth Amendment's protections against excessive use of force by law enforcement officers.
To be sure, the government claims that Mesa shot Hernandez only after he tried to enter the United States and then allegedly threw rocks at federal agents. It is a classic factual dispute, like those decided by juries every day. But, based on the government's arguments - made by the Obama Department of Justice - a lower court threw out the case before it ever reached a jury. Now, the Supreme Court has agreed to weigh in.
In a briefing submitted to the court, the government argued that a noncitizen harmed in another country by a U.S. officer cannot sue the officer for violating the Constitution. And that is what the Trump Justice Department is expected to tell the court today. If the court agrees, how far will its ruling extend in future cases?
That question is of deep importance to civil-rights advocates because the Trump administration is certain to use a ruling in its favor to argue that federal officers cannot be sued no matter how egregious their misconduct.
Given the excesses we have seen so far, the long-term effects of this position would be staggering. Will noncitizens who tried to enter the United States legally and were abused by Customs and Border Protection Officers be able to vindicate their constitutional rights? Will those unlawfully detained and treated harshly in raids by Immigration and Customs Enforcement officers have any legal recourse? How will officers given free reign by the Trump administration's anti-immigrant policies ever be held accountable?
Dozens of advocacy groups have filed briefs urging the court to rule that Hernandez's family can proceed with the case. Obviously, they are motivated by a desire to see the family obtain a remedy for a heartbreaking loss. They are also concerned about the next case of extreme abuse. The court should be, too.
If it is not, then we all ought to be concerned about the message sent to federal officers: They can act with impunity and without consequence.
Jonathan H. Feinberg, a civil-rights lawyer with the Philadelphia firm Kairys, Rudovsky, Messing and Feinberg, contributed to a brief in support of the plaintiffs in the Hernandez case. email@example.com