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Sunday, February 26, 2017

One more from Hernandez v. Mesa

The following exchange occurred toward the end of Petitioner's argument:

Justice Alito asked whether a plaintiff would have a § 1983 action if the shooter had been a state or local police officer; petitioner's attorney responded "You would not have a claim over the State officer, but if you don't --but a Bivens claim--a constitutional Bivens claim could apply to the State officer."

Did counsel misspeak? Or is he arguing that a plaintiff can enforce the Fourteenth Amendment (including the incorporated Fourteenth Amendment) through a Bivens action in situations in which § 1983 runs out (as everyone seems to accept here, where § 1983 protects citizens and "other person[s] within the jurisdiction thereof")? And can that be right, certainly descriptively, under the Court's recent Bivens jurisprudence, where § 1983 would be an alternative remedy?

Posted by Howard Wasserman on February 26, 2017 at 02:09 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Under the Breyer-Kagan shared jurisdiction or Hernandez' Boumedienne argument, 1983 would apply. Although not argued, it appears the culvert is part of the special maritime and extraterritorial jurisdiction of the US, 18 USC 7, so 1983 would apply.

If one accepts the government's "hard border" theory, then cross-border tort law cited by Ginsburg apply. Since a seizure can be initiated by a cop's assertion of jurisdiction by turning on the blue light or deploying a spike strip, certainly an officer firing a shot under color of law is doing so, so 1983 applies. Breyer's image of an officer shooting at a Mexican crossing the Bridge of the Americas applies here.

All of this shows how inapposite Verdugo is to this case.

Posted by: romanette | Feb 28, 2017 10:43:54 PM

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