SCOTUS Will Hear Cross-Border Shooting Case

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Kevin Daley Supreme Court correspondent
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The Supreme Court will hear oral arguments in a case implicating a U.S. Border Patrol agent in the cross-border shooting of a Mexican national in the border zone near El Paso, Texas, Tuesday.

The case asks the justices to determine how the Fourth Amendment’s prohibition on unjustified deadly force applies in the border zone and if the agent is protected by qualified immunity, which protects federal employees from civil suits when they are working in their official capacity.

Sergio Adrian Hernandez Guereca, a Mexican national, was shot and killed by Agent Jesus Mesa, Jr., July 7, 2010. Mesa was standing in the United States when he discharged his service weapon. Hernandez was shot — and died — on Mexican soil.

Lawyers for Hernandez’s family allege he and several friends were playing a game in which they ran up the inclined border culvert separating the U.S. and Mexico, touched the border fence, and retreated back into Mexico.

The U.S. Department of Justice strongly disputes this framing of the incident.

“After the shooting, the Department of Justice conducted a comprehensive and thorough investigation into the shooting, concluding that the shooting took place while alien smugglers, including Hernandez, unsuccessfully attempted an illegal border crossing, and began to hurl rocks from close range at Agent Mesa while he was attempting to detain a suspect,” Mesa’s brief for the Court reads. Hernandez had been arrested twice before for alien smuggling. The Justice Department declined to recommend criminal charges against Mesa.

The justices are not asked to reach findings on these factual disputes.

On appeal, the 5th U.S. Circuit Court of Appeals dismissed the case, finding the Supreme Court’s ruling in U.S. v. Verdugo-Urquidez mitigated against such claims. In that case, the justices found that the Fourth Amendment’s prohibition on unwarranted searches and seizures does not apply when federal agents search homes owned by foreign nationals in other countries. They also ruled that Mesa was entitled to qualified immunity.

Hernandez’s family counters by arguing the Court established in Boumediene v. Bush, that, in particular contexts, foreign nationals may have constitutional protections. The Boumediene decision allowed detainees at Guantanamo Bay, Cuba, to challenge the legality of their detention. Mesa rebuts by asserting that decision applies only to territories over which the U.S. has de facto control — like Guantanamo Bay — and not to territories over which the U.S. does not have exclusive control, like the border zone.

The outcome of the Fourth Amendment decision reflects a divergence in approach to such questions within the Court. While some of the justices favor maintaining bright-line rules about the extent of the Constitution’s application abroad, others prefer an approach which considers the details unique to each situation, and will extend certain constitutional protections on a case-by-case basis.

The question of qualified immunity will turn on whether a “reasonable officer” would have known his conduct was unconstitutional.

In addition to the Fourth Amendment and qualified immunity questions, the justices asked the parties to answer whether or not the Hernandez’s could bring a suit under Bivens v. Six Unknown Agents, which allows courts to award damages for egregious constitutional violations by federal officials.

The case could have a significant effect on U.S. law enforcement or national security abroad. Writing at Lawfare, professor Andrew Kent of Fordham University School of Law explains:

If these amendments are held to apply outside U.S. borders to protect noncitizens, a huge array of intelligence, military, immigration, customs, and law enforcement activity could be impacted. To take two examples that are salient for Lawfare readers: extraterritorial foreign intelligence surveillance and drone strikes, both of which have proceeded to date under the executive branch’s assumption that noncitizens outside the United States have no relevant constitutional rights in those contexts.

The case has attracted a great deal of attention from other parties. Amnesty International and the ACLU have each filed amicus, i.e. friend-of-the-court briefs, in support of the Hernandez family, while the Criminal Justice Legal Foundation filed a brief backing Mesa.

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