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Fourth Amendment

Ziglar v. Abbasi Decided - Are Government Officials Liable for Damages?

Monday, June 26, 03:00 PMFederalist Society Teleforum Conference Call

Ziglar v. Abbasi is the result of over a decade of remands and appeals. The case was originally filed by the Center for Constitutional Rights on behalf of incarcerated Muslim, South Asian, and Arab non-citizens who were targeted after 9/11 by law enforcement as “terrorism suspects.” The defendants in the case, high level officials in the Bush administration, such as Attorney General John Ashcroft and FBI director Robert Mueller, and low level detention officials, filed a motion to dismiss, which was rejected by the in the District Court.

In 2009, the Supreme Court decided in Ashcroft v. Iqbal that government officials were not liable for discriminatory actions of their subordinates without evidence they directly ordered the actions. Meanwhile, five of the petitioners in Ziglar settled with the government, and the case was remanded to the District Court and amended. In 2010, the District Court granted a new motion of dismissal, but only for the high level officials. This dismissal was reversed by the Second Circuit.

The main question the Supreme Court answered was whether these high-level government officials could be sued for damages under the Bivens precedent. The precedent, created in a 1971 case involving the Federal Bureau of Narcotics, created an implied cause of action for any person whose Fourth Amendment rights are violated by federal officials. On Monday, June 19 the Supreme Court refused to extend the Bivens precedent to the petitioners, reversing the decision by the Second Circuit and remanding the case.

David Rivkin of Baker Hostelter will join us to discuss the opinion and its significance.

Featuring:

  • David B. Rivkin Jr., Partner, Baker & Hostetler LLP 

Hernandez v. Mesa - Post-Argument SCOTUScast

SCOTUScast 3-30-17 featuring Steven Giaier
Steven Giaier March 30, 2017

On February 21, 2017, the Supreme Court heard oral argument in Hernandez v. Mesa. In 2010, Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican national, died after being shot near the border between El Paso, Texas and Juarez, Mexico by Jesus Mesa, Jr., a U.S. Border Patrol Agent. Hernandez’s parents, who contend that their son was on Mexican soil at the time of the shooting, sued Mesa in federal district court in Texas, alleging violations of the Fourth and Fifth Amendments. After hearing the case en banc, the U.S. Court of Appeals for the Fifth Circuit ultimately ruled in favor of Mesa, concluding that Hernandez could not assert a Fourth Amendment claim and that Mesa was entitled to qualified immunity on the parents’ Fifth Amendment claim.

There are three questions now before the Supreme Court: (1) whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States; (2) whether qualified immunity may be granted or denied based on facts – such as the victim’s legal status – unknown to the officer at the time of the incident; and (3) whether the claim in this case may be asserted under Bivens v. Six Unknown Federal Narcotics Agents.

To discuss the case, we have Steven Giaier, who is Senior Counsel for the House Committee on Homeland Security.

Courthouse Steps: Hernandez v. Mesa - Podcast

International & National Security Law Podcast
Steven Giaier March 08, 2017

On February 21, the Supreme Court heard argument in Hernandez v. Mesa. In July of 2010, a 15-year-old adolescent named Sergio Adrian Hernandez Guereca and his friends were playing along a concrete structure on the border of the U.S. and Mexico. When Jesus Mesa, Jr., a U.S. Border Patrol Agent arrived, he detained one of the youths on the border, and shot and killed Hernandez, who was hiding behind a pillar of the Paso Del Norte Bridge on the Mexican side of the border. Hernandez’s parents sued Agent Mesa under the Fourth and Fifth Amendment for the use of unlawful and disproportionate force. Agent Mesa argued that the Fourth and Fifth Amendments did not apply because Hernandez was not a U.S. citizen.

The District Court found for Agent Mesa, while the U.S. Court of Appeals for the Fifth Circuit held that the Fifth Amendment protections against deadly force applied but the Fourth Amendment did not, and that Agent Mesa should not receive qualified immunity. The main questions for the Supreme Court to answer are: Does the Fourth Amendment apply? Should qualified immunity apply to the border patrol agent? And can Agent Mesa make a Bivens claim?

Steve Giaier of the House Committee on Homeland Security attended oral argument and shared his perceptions.

Featuring:

  • Steven Giaier, Senior Counsel, House Committee on Homeland Security

Courthouse Steps: Ziglar v. Abbasi - Podcast

International & National Security Law Practice Group Podcast
January 27, 2017

Ziglar v. Abbasi is the result of over a decade of remands and appeals. The case was originally filed by the Center for Constitutional Rights on behalf of incarcerated Muslim, South Asian, and Arab non-citizens who were targeted after 9/11 by law enforcement as “terrorism suspects.” The defendants in the case, high level officials in the Bush administration, such as Attorney General John Ashcroft and FBI director Robert Mueller, and low level detention officials, filed a motion to dismiss which was rejected by the in the District Court.

In 2009, the Supreme Court decided in Ashcroft v. Iqbal that government officials were not liable for discriminatory actions of their subordinates without evidence they directly ordered the actions. Meanwhile, five of the petitioners in Ziglar settled with the government, and the case was remanded to the District Court and amended. In 2010, the District Court granted a new motion of dismissal, but only for the high level officials. This dismissal was reversed by the Second Circuit and then the government petitioned the Supreme Court for review.

Professor Jamil Jaffer joined us to discuss the oral argument of this case, which was held on January 18.  

Featuring:

  • Prof. Jamil N. Jaffer, Adjunct Professor of Law and Director, Homeland and National Security Law Program, Antonin Scalia Law School and former Chief Counsel and Senior Advisor, Senate Foreign Relations Committee

Ashcroft v. Abbasi: 9/11 Detainee Case

Short video featuring Jamil Jaffer
January 15, 2017

Can federal officials be held liable personally for enforcing the “hold until clear” policy following the attacks on 9/11?   Jamil Jaffer, Director of the Homeland and National Security Law Program at the Antonin Scalia Law School, explains the dispute in the upcoming Supreme Court Case Ashcroft v. Abbasi.   Questions before the Court include whether a group of individuals who were arrested immediately after 9/11 have standing to bring a Bivens claim for violation of their constitutional rights, whether the federal officials enforcing the policy are entitled to qualified immunity, and whether the officials acted based on racial discrimination or a concern for national security.  The Supreme Court will hear oral argument on January 18th.