Constitutional Law, Courts, Society, Supreme Court

Supreme Court To Hear Important Case Involving Shooting Of Mexican National At Texas Border

SCOTUSToday the Supreme Court will hear  Hernandez v. Mesa, a case with potentially significant impact on the current immigration debate.  The case involves the shooting and killing of Sergio A. Hernandez Guereca, 15, at the border on June 7, 2010.  The family argues that Hernandez was simply playing a game with his friends in running to touch the U.S. border fence when Border Patrol agent Jesus Mesa, Jr. shot and killed him.  The agents insist that Hernandez was a known illegal alien smuggler with two prior arrests and was throwing rocks at the agents.  Since the government prevailed below before the United States Court of Appeals for the Fifth Circuit, the Court will only consider the facts asserted by the family in determining if dismissal was appropriate.  At issue will be the right of a foreign national to assert constitutional rights — an issue that could have bearing on the ongoing debate over the Trump immigration executive order.


The case falls within an ambiguity created by the Supreme Court over the extraterritorial application of U.S. constitutional protections to foreign nationals.  The family is asserting fourth and fifth amendment rights on behalf of Hernandez.  However, the Fifth Circuit ruled that a foreign national cannot claim the protections of such rights outside of the United States. That is in accord with the 1990 decision in United States v. Verdugo-Urquidez.  However, the family is relying on the decision in 2008 decision in Boumediene v. Bush where Justice Anthony Kennedy ruled against the formalist application of a sovereignty rule in considering claims of  detainees of the U.S. Naval Station at Guantanamo Bay, Cuba.  He held that  the Constitution’s extraterritorial applications “turn on objective factors and practical concerns,” not a “formal sovereignty-based test.”

The result is a fight between formalist and functionalist analysis.  The family is seeking to amplify the prior Kennedy ruling and establish that “de jure sovereignty” is not  “the only relevant consideration in determining the geographic reach of the Constitution” because “ques- tions of extraterritoriality turn on objective factors and practical concerns, not formalism.” 553 U.S. 723, 764 (2008). However, the “practical” approach advocated by the family may be too fluid and uncertain for some of the justices.  The agent is arguing that Boumediene dealt with the “great writ” and was narrow in its scope.  Moreover, the Court has cases that expressly reject  them application of fifth amendment rights to foreign nationals outside of the country.  Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255 (1950) and United States v. Verdugo-Urquidez, 494 U.S. 259, 271, 110 S.Ct. 1056, 1064, 108 L.Ed.2d 222 (1990).

 

The vacancy on the Court raises an interesting problem.  Judge Gorsuch is weeks if not months away from confirmation.  If Kennedy were to continue his “practical” approach to the area, he could supply a fifth vote with Ginsburg, Breyer, Kagan, and Sotomayor (assuming that they all agree with the family).  Otherwise, a 4-4 split would leave the Fifth Circuit ruling in place.  Notably, if Kennedy did follow the line in Boumediene, even the addition of Gorsuch in a rehearing would not alter the result with a five justice majority.  Moreover, the Court could still rule against the family on qualified immunity in finding that, given the conflict in these cases, there was no clear rule at the time of the shooting.

If Kennedy were to supply a critical vote in favor of extraterritorial application, the case would support challengers to the Trump immigration order. The new order expected to be released this week reportedly contained an express exemption for permanent visa holders.  That would create a barrier to standing if foreign nationals are not allowed to invoke constitutional rights extraterritorially.  Of course, a decision could limit such extraterritorial application to some types of rights or cases and still exclude a broader extraterritorial use by foreign nationals in areas like immigration.

The question for the adoption of a functionalist approach will be line drawing.  It seems doubtful that the Court would embrace absolute extraterritorial application of constitutional rights.  That begs the question of the basis and scope for selective extraterritorial application.

 

What do you think?

85 thoughts on “Supreme Court To Hear Important Case Involving Shooting Of Mexican National At Texas Border”

  2. It’s my understanding that there are two separate issues, and only one of them is before the Court now. That’s whether Constitutional rights should be afforded to non-american citizens outside of the US. The short answer from my non-attorney perspective is, “no.” The precedent this could raise would be catastrophic. What if such a move granted constitutional rights to the terrorists we fight overseas? The realm of unintended consequences would be vast.

    The other issue is whether this was a justified shooting or not. It sounds like there was contradictory stories, some video evidence at odds with the border patrols’ testimony, as well as further claimed evidence that has not been released. We don’t have enough information to judge whether it was justified or not. And I hope that the BP releases the evidence if they have already come to a conclusion. The loss of a teenager is grim. Even if his actions justified the shooting, it’s still sad. And if it didn’t, then it compounds the loss. It is true that cartels use teenagers, so this could go either way. I hope we can find out what happened.

  3. The.world is changing rapidly.
    It is quite paradoxical that the PGA decided to move the
    WTC golf tournament to Mexico next week.
    No venue available in the US.
    I hope our golfers rights will be protected there.
    Common sense has been derailed in this great country.

  4. How could the guy on the Mexican side, not an American guy, have standing to sue under the U.S. Constitution if he was not standing his ground on the American side of the border? This goes to the stand your ground laws in the states as well. The defense by the cop on the American side was that he was standing his ground. This should be a compete defense determined by the judge on motion and not for a jury to decide.

      1. The “wall” will be paid for by taxing money transfers from USA to Mexico. Same rationale as a cigarette tax, obscenely high to curb the behavior and be a disincentive to want to come here and work and then send money back.
        So Mexico will pay for the wall after all.

        1. The Texas legislators are against the wall and most are against the border tax. Doubt either will happen.

          2. Joe, the beauty of this tax will be that why should the US economy be denied monies that have been generated here but spent elsewhere?
            They come here pay local gasoline tax, property tax via rents and then instead of investing monies here in the states they send monies back home to another country for investment in that country.
            Imagine if every American sent a portion of their income out of America to enrich another economy while using american resources.
            Well?

              1. My friend there is nothing that is a done deal with this administration. You can sow negative feelings towards this idea but once people see how much money flows out of this country to another, regardless of wether it’s Mexico, China or the Philippines, it’s an easy target and will be seen as necessary to tax that money’s lack of contribution to our own economy by shipping it elsewhere.
                Welcome to Trumponomics 101..

                1. It does not matter what I think. Walmart and the retail association are spending a lot of money to kill it and they will prevail i am sure.

  6. Let’s see. Obomya had a secret extra-judicial kill list for American citizens, which we know he used to drone murder two, one of them a 16 year old child Anwar Al-Awlaki. Charged w/no crime and the Peace Prize winner murdered him w/tens of millions of dollars worth of taxpayer funded state of the art weaponry.

    If the parents of this 16 year old “game player” get to sue this blue collar LEO, then certainly, positively, American citizen Al-Awlaki’s family can sue the multi-millionaire peace prize winner. Ditto the surviving family members of the “66,000” innocent civilian non-combatants the USA admits it slaughtered in Iraq (per Snowden docs, actual # at least 10-20x higher…I’m sure the surviving family members love America for bringing democracy to them).

    Several years ago on NPR, an instructor at the War College stated that POTUS is totally protected by USA law no matter how many innocent civilian non-combatants he chooses to slaughter (Dresden, Hiroshima, Nagasaki, etc. etc.)

    Americans are absolutely enthralled w/shedding blood, no matter what kind or who or where. It’s hypocritical to raise so much controversy about blood shed in certain situations like the subject of this article.

  7. The Obama Administration said the matter should be tried in Mexico but refused to extradite the officer for trial. Early statements from the border patrol said rocks were being thrown but didn’t single out the victim and videos seem to show the boy running away (posing no threat) when he was shot. This hearing appears to be one of jurisdiction, justice seems a long ways away if ever. If we take a face value what the border patrol says. Having a record does not justify his murder. If he threw rocks and was running away it does not justify his murder. Nothing justifies his murder.

    The boy was in Mexico and the border patrol officer felt secure in shooting in the head someone running away from across the border. I’m not arguing that Mexicans should be citizens. I am saying that when Americans murder them there should be consequences.

    1. enigmainblackcom – you can shoot anyone using lethal force against you. Throwing rocks have killed and/or badly injured people. You have the right to protect yourself. The fact that he was running away at that point means nothing. I am sorry the kid is dead, but kids throw rocks at the Border Patrol all the time. I think the officer has qualified immunity.

      1. Perhaps there were rocks thrown earlier. None were being thrown at the time and indeed the boys were running away. Was the Border Patrol officer under any threat at the time he killed the boy?

        1. enigmainblackcom- it is the ‘perhaps’ in your sentence that counts. That fact that they threw rocks (a dangerous object) at the agent, constitutes assault with a deadly weapon. Firing on them while they are trying to escape is covered by a SC case. The problem is the bullet crossing the border. This is where it gets dicey.

          1. Are you using the Walter Scott case as precedent to justify fleeing people in the back? There still is not even an allegation to my knowledge that the dead boy threw anything. No proof anyone did in this instance.

    2. enigmainblackcom – do you think there should be consequences for kids who throw rocks at Border Patrol agents?

      1. Yes although you seem to be arguing the family’s case from the opposing point of view. If I throw a rock from Mexico can you charge me under American law. Can I be sued in Mexican courts. I’m pretty sure shooting the kids in the head is a bit excessive. I suspect if this was the Canadian border the discussion in general would be different.

        1. enigmainblackcom – let’s put it another way. The agent is supposedly 60 yards away, an excellent shot with a pistol. Let’s say he took off across the border after the kid, captured him and took him to the federales. Do you think the federales would have arrested the kid or the agent?

    3. Absolutely, and Trump is further emboldening the ICE agents to step over the line. A decision against the family will make matters worse.

  8. It would be a ‘can of worms opened’ if US Constitutional rights were guaranteed or established by precedent, to other than US citizens, out side the US. There is already the issue, often contended, of rights guaranteed or not to non US citizens inside the US. The victim of the officer’s lack of control should not be linked to rights guaranteed by the Constitution.

    The affording of the conditions based on Constitutional rights to non US citizens outside the US should be made by decisions situationally specific and granted by decisions unique to those situations.

    The issue of a US officer of the law firing into a foreign country in pursuit or response to a citizen of that country is, however, another can of worms. This situation should be handled at higher diplomatic levels. The US attacked Mexico. Throwing rocks is not an invasion. Taking lethal force into a sovereign state should require authority from a much higher level than some border guard. The legal self gratification should not obscure the fact that the border guard killed a boy and compensation, and/or punishment should follow. If the guard gets away with killing a Mexican citizen in Mexico from the US, a dangerous precedent will have been set. This would be yugely sad but applauded by DDT and the dupes that voted him and his gang in.

    1. It appears “dupes” like you and Congressional Dems who voted in Obomya and his gang yugely applaud Obomya for allowing the ICE agent to get away w/murder, and not extraditing him to face charges in Mexico. Maybe if you get a calendar and think real hard and slow, you can figure out who was POTUS when the ICE agent shot the Mexican. .

      Oh, and tell the next brain deficient Dem who faces off against Trump: it’s not a popular election. Maybe they’ll do better than lose by 37% like your last Candidate.

      And keep telling your fellow Americans how dumb they are/were for voting for Trump. Personally insulting and attacking voters worked really well for HRC.

      1. Personally insulting and attacking just about everyone was all DDT had going for him, along with nifty slogans. That says something about you and your argument, something in the neighborhood of hypocrisy. Of course when the biggest phony to come along is voted in, that says something as well. As far as me telling my fellow Americans; I suppose that means you, DDT and his mob have been telling or expounding lies and nonsense for some time. It seems to be the way these days here in the good ole US of A. The most dysfunctional democracy going. Perhaps we should talk about that. However, when your guy gets in on lies, phony records, and hate, I suppose you would want to stick with that.

    2. issac – the Court has not gotten that far yet. Basically, it is a matter of jurisdiction and immunity.

  9. Was Officer Mesa disciplined for this shooting?If so,what was the outcome ie.were his actions found to be justified?

    1. Don’t know all the details, but Mesa claimed that he was “surrounded” and feared for his life. The subsequent FBI investigation determined that the shooting was justified.

      Then cell phone video surfaced showing that Mesa was not surrounded and that Hernandez was approximately 60 feet away. Mesa’s story and the FBI validation look very tenuous in view of that footage. Border Patrol claims that there is other video that show Mesa surrounded, but they have declined to release that footage.

      Border Patrol then claimed that since Hernandez was in Mexico when he was shot, they do not have jurisdiction to act.

      A Mexican court indicted Mesa for the murder, but the U.S. declined to extradite him.

      It appears on the available evidence that Mesa over-reacted and used excessive force; however the legal situation (border/jurisdiction) is so murky and law enforcement’s determination to protect its own means that the truth will never be known.

        1. enigmainblackcom – you do know that about 1,000,000 illegal aliens invaded the US last year alone. Pancho Villa was famous for raiding across the US border and then crossing back into Mexico. Under the ‘catch and release’ policy there is no reason for the kids not to cross the border and harass the agent.

            1. DHS figures for FY 2015:

              New visa overstays: 511,000
              Persons caught trying to hop border: 337,000 (likely equal number either released into interior or not caught)
              Births to temporary visitors and illegal immigrants: 290,000

              Add it up:
              511,000
              337,000 (estimate)
              290,000
              ——————-
              1,138,000 persons added more than if immigration were enforced

              1. Persons born in the United States are lawfully present in the Country, regardless of parentage and so are not illegal aliens. I’m not sure I would have put visa overstays in the category of “illegal aliens who invaded the US.” Interestingly, the largest number of visa overstayers by a large margin are from Canada–yet we rarely hear about “invaders” from the north.

  10. This incident betrays the lack of cooperation with Mexico over border security. Hopefully, the Court will find that such disputes must be resolved under the terms of a bilateral agreement, and absent one, go unresolved. It would be a grave misreading of the Constitution for the Courts to butt into into foreign policy and diplomacy matters. Imagine the chaos that would ensue if foreign governments refused to solve problems diplomatically, banking on obtaining a better “deal” from suing in US Federal Court?

  12. This should be easy. Search a copy of the US Constitution for ‘citizen’, compare to ‘person’ or ‘people’. Example: Amendment14: “…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor to deny to any person within its jurisdiction the equal protection of the laws.” If these foreign nationals (the family) can sue the USGov, they are at least partially under its jurisdiction. No citizenship needed. Look at the rest of the BillOfRights, they say citizen when they mean citizen, and person or persons when they mean it.

    But this isn’t really about justice, it’s about politics.

    1. Good thoughts. Your asking for a substantive due process analysis. Everyone and anyone – not just citizens and those having a substantial connection to the US – should have a right to limitations on the exercise of government authority. I agree with you, but it appears precedent doesn’t.

      For instance, the DEA and our military should not be permitted qualified immunity to pepper anyone at will in Colombia, but it looks like the state of the law would allow this.

      1. Not at issue. If DEA assassinates someone in Columbia outside of a cooperative law enforcement op, the DEA agent could be arrested, charged, and impisoned in Columbia.

        1. Would you agree that a DEA agent that commits a homicide in Colombia or Mexico would be immune from prosecution here if the victim had no connection to the US otherwise and there was no agreement between the two countries allowing for it?

    2. “If these foreign nationals (the family) can sue the USGov, they are at least partially under its jurisdiction.”

      **********************

      Circular reason much? Richmond is in Virginia therefore Richmond is in Virginia.

    3. The words in the Constitution fall prey to the inexactitude of the English language. The only way to resolve ambiguity that respects the Ratification process is to ask “What did the Ratifiers believe they were agreeing to when voting to Ratify?” If we open up the language to judicial reinterpretation, then that circumvents the rigorous test of consensus building implied by getting 2/3 of Congress and 3/4 of state legislatures to Ratify. Why would such a daunting display of public consensus be mandated by the Founders if it were as simple as getting a handful of black-robed judges to change the wholesale meaning of the language once Ratified?

  13. Why not just exercise reciprocity? How many rights do US citizens enjoy in Mexico? FAIR IS FAIR, right?

    As to the boy, it is horrible he met his end this way. If Mexico weren’t such a terrible, violent, and failed state- then we wouldn’t have the need for such border security.

    I wish we would drop so many small arms and ammunition on the good Mexican people and let them take their country for themselves, and set up their own constitution which basically copies our own (sure, change it for yourselves, but be careful!).

    1. Mexico’s not a failed state. Mexico has a high crime rate. That’s generally regionally concentrated.

      1. When organized crime begins to infiltrate the criminal justice system with bribes and threats, you have the seeds of a failed state. Mexico is in a gray zone where it could clean up its CJS corruption, or see that corruption go viral and destroy the state. I’m optimistic that Pres. Trump will stoke rule-of-law passions south of the border, and we’ll see Mexico finally prevail over organized crime cartels.

  14. Border patrol have been shot at by Mexican nationals on a regular basis, yet have no recourse in the Mexican courts. Personally, I would hold the officer has qualified immunity.

    2. That sounds like you have either determined that the officer’s version is truthful, or determined that a Border Patrol officer can shoot at people on the other side of the border at will.

  15. There’s no qualified immunity for murder. DOJ should have prosecuted Mesa instead of concluding there was no jurisdiction. We can’t allow turkey shoots at the border unless we’ve given up faith in a civilized society.

    Needless to say, the civil suit should go forward.

    1. It depends on how much physical abuse we expect the Border Patrol to tolerate. We have armed officers guarding the border for a reason. It’s a dangerous job. Certainly if an officer is shot at he/she should have a right to shoot back. What if he is attacked with a knife? The law would also allow a lethal response. What about rocks or fists? A decent sized rock hurled by a teen-aged boy can do severe damage if it hits the officer in the head or face. While on t.v. the cop might shoot the rock out of his hand, in the real world the cop just shoots at the area with the most body mass. I would like to think that a warning shot would have ended the situation, but we weren’t there.

      1. “It depends on how much physical abuse we expect the Border Patrol to tolerate.”

        That’s one important consideration, but how do you find the actual physical abuse without a trial? Trust the border patrol’s version? The government has the authority to effectively foreclose fact-finding by claiming there’s no jurisdiction or qualified immunity. That authority is a recipe for abuse.

        By the way, the unarmed boy was shot in the head at sixty feet (IIRC), but the brief in opposition excluded that fact.

        Cops make mistakes – everybody does – but theirs tend to be glaring excesses on a moment’s judgment in the middle of an adrenaline dump. I understand that there can be nearly unavoidable difficulties in decision-making under such circumstances, but to cover their mistakes, they lie, and they’re good at it because they testify a lot. And it’s the jury who should decide who is telling the truth – even with Mexican children, no matter what they were doing.

        The Mesa case shows how our laws in some ways are in their infancy. It seems that the Supreme Court can almost never cover every fact pattern when developing new tests for constitutionality which then turn out to be too inflexible to dovetail every set of facts, and in this case the current law appears to cut off liability for what could very well have been murder. It’ll be interesting to see where Kennedy’s objective test takes this case, if anywhere.

        1. Steve Groen – there is plenty of film of kids throwing rocks at the Border Patrol. It happens daily.

      2. A rock is a lethal projectile (ask Goliath), and hurling one at a federal officer is a felony under federal law. Firing to stop a fleeing felon is justifiable to prevent further harm such as getting more rocks or endangering others. Likely, the FBI knows the law and exonerated the border patrol officer because of it. I don’t see what all the hubbub is about. Johnson v. Eisentrager is still good law.

  16. By no means an atty… but even I can see an oncoming mess if we, from a SCOTUS ruling, say non US nationals outside our borders have Constitutional rights.

  17. I am appalled. By the action of the border guard but I think the application of constitutional rights to foreign nationals outside US jurisdiction would be a decision we would all come to regret as attractive as it might appear at first blush.

    1. I concur. Our laws have to be more than pretense. I feel for the family, but to me this just further illustrates the lack of respect many have for the fact that borders exist at all. I have worked at National Laboratories, and they are usually guarded with military force. They have M-16s, not hand guns or tazers. *American* people that actually *work* there know better than to fool around with anything above their clearance level as they will be shot. People don’t seem to have the same regard for the border. It probably isn’t wise to even tempt fate when there are legal, though admittedly more laborious, methods to utilize.

  18. Why do they not take into account what the agents have to say? Does law enforcement have to be constantly vilified? I’m so tired of this. Aliens should not have rights under our constitution unless and until they have entered our country legally. Regardless of the fact that the US is appealing to others around the world, we cannot continue to support these people when there is great need here in our own country. It’s time for a reality check.

    1. At this initial stage of the litigation, the determination of whether there is jurisdiction, the court accepts the allegations of the Complaint as true. This is the same as in any case where the Plaintiff alleges facts establishing jurisdiction and liability ad the defendant denies one or more of those facts. The court does not determine which side is more accurate when making the legal determination as to whether the action can proceed. Remember the decedent did not enter the country legally or illegally. An American citizen shot into another country and killed someone. While the jurisdiction issue is a real and complex one, it is also not unreasonable for a decedent’s family in this situation to seek a remedy. I think you might feel differently if the court was refusing to provide a remedy to the family if a Mexican officer shot into the United States and killed an american kid who was playing under a bridge.

  19. Guilt only happens when it is adjudicated by a court or accepted by a perpetrator. Marco, you clearly meant responsibility right? Or was there a finding of fact by a judge that nobody is aware of???

  20. Just because the victim was on the other side of the border doesn’t ameliorate the officer’s guilt.

    1. The victim’s family says he was a child playing tag and was shot for absolutely no reason. The Border Patrol says he was a known smuggler with two prior arrests and was assaulting the agent with rocks. We don’t know, and it doesn’t matter. The question of whether the officer used reasonable force isn’t before the court. That question may or may not be addressed later. Before the U.S. Courts can address that issue, they have to resolve the question of jurisdiction. The victim was shot in Mexico. Do U.S. Courts have jurisdiction over events which take place in Mexico, or any other foreign country? Did the Framers intend for the Constitution to extend rights to non-citizens for acts which take place outside the U.S.? If so, does that mean that Mexico would have jurisdiction over events which take place within the U.S.? If a cop in Kansas assaults an illegal alien, can the cop be extradited to be tried in a Mexican court? Is the U.S. border so fluid that events which take place within a few miles of either side of the border can be tried in either a Mexican or U.S. court? These are the issues for the SCOTUS. Personally, I think the border should be a bright line. If the SCOTUS rules that the border is a fluid concept, it will be opening a huge can of worms. U.S. sovereignty will become an open question, not to mention the arrogance of a ruling that U.S. laws apply in other countries.

      1. Yet we are happy to extend jurisdiction over actions beyond our borders under the Alien Tort Claims Act.

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