Does Constitutional Protection Stretch Over the Border?

By Kellie Mahoney, J.D. Class of 2018 Touro Law Review Junior Staff Member

On June 7, 2010, Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican boy, was playing with a group of his friends on the Mexican side of a cement culvert near the Paso del Norte Bridge, which separates Mexico from El Paso, Texas.[1] The boys were playing a common game that was known to both Mexican children and Border Patrol Agents alike, in which the boys would run up to the incline of the culvert, touch the barbed-wire fence separating the two countries, and then run back down the incline.[2] United States Border Patrol Agent Mesa approached the group and detained one of Hernandez’s friends.[3] While the agent was still standing in the United States, he fired at least two shots at Hernandez who had retreated from the scene but remained in Mexico.[4] One of those shots struck Hernandez in the face and killed him.[5] Six months after the boy’s death, his parents filed suit in the United States District Court for the Western District of Texas, alleging that Agent Mesa violated the Fourth and Fifth Amendments of the United States Constitution through the use of deadly force and the failure to use reasonable force when making arrests.[6] Mesa moved to dismiss, claiming that Hernandez lacked constitutional protection because of his alien status and the fact that he was physically in Mexico when he was killed.[7] The district court granted Mesa’s motion and Hernandez’s parents filed an appeal.[8]

The United States Court of Appeals for the Fifth Circuit held that Agent Mesa’s arguments against Hernandez’s Fourth Amendment claims were no longer supported by the Supreme Court.[9] In Boumediene v. Bush,[10] the Supreme Court addressed the standards used in applying Fourth Amendment constitutional principles abroad.[11] In this case, the Court precluded the use of a categorical test such as the one Agent Mesa proffered.[12] Thus, the Fifth Circuit held that

Boumediene and the cases cited therein indicate that [its] inquiry involves the selection application of constitutional limitations abroad, requiring [the court] to balance the potential of such application against countervailing government interests. In other words, [the court’s] inquiry is not whether a constitutional principle can be applied abroad; it is whether it should.[13]

Using this malleable standard, the Fifth Circuit ultimately decided that three “objective factors and practical concerns” were relevant: “(1) the citizenship and status of the claimant, (2) the nature of the location where the constitutional violation occurred, and (3) the practical obstacles inherent in enforcing the claimed right.”[14] Using these factors and concerns, the Fifth Circuit found that Hernandez “lacked sufficient voluntary connections with the United States to invoke the Fourth Amendment.”[15] The Court then discussed Hernandez’s Fifth Amendment claim.

Hernandez’s Fifth Amendment claim stated that Agent Mesa showed a callous disregard for Hernandez’s rights by using excessive deadly force when he was unarmed and presented no threat.[16] After discussing the more flexible standards of the Fifth Amendment’s application extraterritorially, the Fifth Circuit held that “a noncitizen injured outside the United States as a result of arbitrary official conduct by a law enforcement officer located in the United States may invoke the protections provided by the Fifth Amendment.”[17]

Hernandez filed a petition for writ to the Supreme Court on July 23, 2015.[18] The issues presented to the Court are (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 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.[19] Oral argument is set to start on February 21, 2017.[20] A final holding by the Supreme Court could give a definitive answer as to whether those who are injured or killed in Mexico by United States Border Patrol agents have standing to sue in the United States.[21] Since 2010, there have been six cases similar to the Hernandez case.[22] Proponents of the families of the victims argue that international law, national law, and basic human rights simply cannot allow for an agent to shoot and kill someone without recourse.[23] Groups on the other side, such as the National Border Patrol Council, are concerned that such recourse would cause agents fear when acting against an aggressor in Mexico.[24] As such, if the Supreme Court definitively grants non-citizens the right to sue U.S. Border Patrol agents, the interactions between those agents and the people of Mexico, and citizens of other countries, will be drastically changed.

[1] Hernandez v. U.S., 757 F.3d 249, 255 (5th Cir. 2014).

[2] Id.

[3] Brittany Davidson, Shoot First, Ask Later: Constitutional Rights at the Border after Boumediene, 64 Am. U. L. Rev. 1547, 1548 (2014-2015).

[4] Hernandez, 757 F.3d at 255.

[5] Id.

[6] Id. The Fourth Amendment states

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. The Fifth Amendment states

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger, nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken without just compensation.

U.S. Const. amend. V.

[7] Id.

[8] Hernandez, 757 F.3d at 255-56.

[9] Id. at 260.

[10] Boumediene v. Bush, 553 U.S. 723 (2008).

[11] Id. at 766-67.

[12] Id. at 764.

[13] Hernandez, 757 F.3d at 262.

[14] Id.

[15] Id. at 266.

[16] Id. at 267.

[17] Hernandez, 757 F.3d at 272. The Fifth Circuit differentiates the Fourth Amendment analysis from the Fifth Amendment analysis, concluding that Hernandez’s claim “is not constrained by prior precedent on extraterritoriality, unlike [his] claim under the Fourth Amendment.” Id. at 268. It goes on to discuss the Fifth Amendments application to “any person,” rather than “the people” protected by the Fourth Amendment. Id. The Court also recognizes that the practical concerns that counseled against Fourth Amendment protection, do not carry the same weight as to the Fifth Amendment context (such as the need for surveillance, varying degrees of reasonableness, etc.). Id. at 270.

[18] Hernandez v. Mesa, 785 F.3d 117 (5th Cir. 2015), cert. granted, 137 S.Ct. 291 (U.S. Oct. 11, 2016) (No. 15-118).

[19] Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). “Under Bivens a person may sue a federal agent for money damages when the federal agent has allegedly violated that person’s constitutional rights.” Hernandez, 757 F.3d at 272. This is not, however, an automatic entitlement. Id. The Court must first ask “whether any alternative, existing process for protecting the constitutionally recognized interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” Id. (quoting Minneci v. Pollard, __ U.S. __, 132 S.Ct. 617, 621, 181 L.Ed.2d 606 (2012)). If, as in the Hernandez family’s case, there is no other alternative, the Court will move to the second step which requires the Court to “exercise [its] judgment in determining whether ‘any special factors counsel hesitation.’” Id. at 274-75. Here, the Fifth Circuit found no such factors. Id. at 277.

[20] Hernandez v. Mesa, 785 F.3d 117 (5th Cir. 2015), cert. granted, 137 S.Ct. 291 (U.S. Oct. 11, 2016) (No. 15-118).

[21] Rob, O’Dell, Supreme Court to hear Border Patrol Cross-Border Killing Case, The Arizona Republic, Oct. 11, 2016,

[22] Id.

[23] Id.

[24] Id.


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