Justice at the Border

Abstract

In two recent cases, children were shot by Border Patrol agents across the United States and Mexico border. In one case, the Ninth Circuit found the Border Patrol agent was not entitled to qualified immunity and should pay damages to the teen’s family. However, the Fifth Circuit refused to allow damages in the other case because of concerns over national security. The circuit split raises questions over separation of powers and how far the power of the courts should go when deciding damages in cases involving transnational issues. This Article discusses officials’ qualified immunity and its limits when constitutional violations occur; judicially created Bivens damages; and the circuit split over separation of powers concerns and fairness to plaintiffs.