Bivens at the Border: Special Factors in Assessing Bivens Actions for Cross-Border Killings

(140 Ratings)

Produced on: September 11, 2017

Course Format On Demand Audio

Taught by


Course Description

Time 60 minutes
Difficulty Intermediate

Earlier this year, the United States Supreme Court heard oral argument in the Hernandez v. Mesa case. In that case, a fifteen-year old Mexican national, Sergio Hernandez, was shot and killed by a U.S. Border Patrol agent. Sergio and his friends were playing in a cement culvert, running back and forth across the border. A U.S. Border Patrol agent approached the boys, detained one and then fatally shot Sergio as he was standing on the Mexican side of the border.

Sergio’s family sued the United States and the agent alleging that Sergio was protected under the 4th and 5th Amendments to the Constitution. The district court determined that Sergio, a non-citizen outside the U.S., lacked voluntary connections to the U.S. and therefore lacked 4th and 5th Amendment constitutional rights. The district court dismissed the case. On appeal to the United States Court of Appeals for the 5th circuit, a three-judge panel determined that Sergio had 5th amendment rights, but no 4th Amendment rights, and that the agent was entitled to qualified immunity. An en banc 5th Circuit reversed the panel’s decision and dismissed the Plaintiffs’ claims in their entirety.

Sergio’s family appealed to the U.S. Supreme Court. The U.S. Supreme Court reversed and remanded, instructing the 5th Circuit to reconsider its ruling against Sergio’s family in light of Ziglar v. Abassi, another recent case in which the Court limited the right of federal detainees to bring a Bivens action against federal officials for abuse. This course examines the Hernandez case in light of Abassi and discusses whether and how Abassi changes the landscape for Bivens claims.

Learning Objectives:

  1. Review the facts of Mesa and the different analyses presented to the Court
  2. Discuss current Bivens jurisprudence and possible changes in light of Abassi and Mesa
  3. Consider the potential outcome of Mesa at the Fifth Circuit based on Abassi


Matthew C. Weiner

Hilliard & Shadowen LLP

Mr. Weiner started working part-time for Hilliard Shadowen LLP during his last semester of law school, and he joined the firm full-time upon graduation in May 2012.  His practice concentrates on developing and litigating antitrust and consumer protection cases in the pharmaceutical industry.  He has assumed significant roles in a number of the firm’s pharmaceutical antitrust cases, including:

In re Loestrin Antitrust Litigation;

In re Actos End-Payor Antitrust Litigation; 

In re Suboxone Antitrust Litigation;

In re Asacol Antitrust Litigation;

In re Aggrenox Antitrust Litigation;

In re Solodyn Antitrust Litigation; and

In re Nexium Antitrust Litigation.

In addition, Mr. Weiner has assumed significant roles in all of the firm's civil rights cases.    

Mr. Weiner graduated from The Pennsylvania State University, Smeal College of Business with a B.S. in Accounting.  He then attended The Pennsylvania State University, Dickinson School of Law, where he served as managing editor of the school’s law review, Yearbook on Arbitration and Mediation.  He was also elected to coach Penn State’s ABA National Moot Court team, and he competed in the Mardi Gras Sports Law Moot Court Competition.

While attending law school, Mr. Weiner served as a judicial extern for the Hon. Kim Gibson, United States District Court for the Western District of Pennsylvania.  He was also a judicial intern for the Hon. Linda S. Jamieson, Supreme Court of New York, Rockland Division.

Mr. Weiner has extensive research experience in antitrust, having served as a research assistant for a professor updating a comprehensive antitrust treatise, and for another professor preparing a volume on antitrust law in the pharmaceutical industry.  Other areas of particular interest include consumer class action litigation and arbitration. 


Erich S.

Speaker had direct experience and also showed a lot of class and respect for human dignity. Best CLE of my entire reporting cycle!

richard b.

The course accomplished what it said it would.

Amber P.

I liked the presenter very much. Will look for other programs by him.

Thaddeus A.

Very interesting presentation!

Deborah T.

I am impressed by the scope of knowledge the presenter has on this subject.

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