One of the most important cases is one pushing the borders of the Fourth Amendment. This case, Hernandez v. Mesa, which was argued on Feb. 21, 2017, before the Supreme Court also tests the application of the Fourth at America’s borders.

Here’s the gist of the case. In June 2010, Sergio Adrian Hernandez Guereca, a 15-year-old Mexican youth was playing soccer on the Mexican side of the border at a culvert that separates El Paso, Texas from Juarez, Mexico. U.S. Border Patrol Agent Jesus Mesa Jr. arrived at the border and detained one of Hernandez’s friends at the United States side of the border.

Attorneys said that Hernandez retreated to the Mexican side of the culvert, which is maintained by both the United States and Mexico. Hernandez was taking cover behind a pillar of a bridge going over the culvert when he was fatally shot by Mesa. Cell phone video taken at the time of the shooting is available, but is gruesome. The  country of Mexico formally charged Mesa with murder and asked for him to be extradited, a request the United States refused.

Six months after the death, the Hernandez family filed a lawsuit against Mesa in the federal district court in Texas, and the case made it’s way to Court of Appeals for the Fifth Circuit. The petitions to the case, the Hernandez family, appealed after having lost an en banc review by the Fifth Circuit, and the Supreme Court granted cert. Three questions have come up in the case, two of which are directly asked in the petition for writ of certiorari. Those questions are:

  1. Does a formalist or functionalist analysis govern 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. May qualified immunity be granted or denied based on facts—such as the victim’s legal status—unknown to the officer at the time of the incident?
  3. Can the claim in this case be properly asserted under Bivens v. Six Unknown Fed. Narcotics Agents, which governs when federal agents may be liable for damages for violating an individual’s constitutional right?

The appellate court held that the Fifth Amendment protections applied in these circumstances, but not Fourth Amendment, or specifically Bivens cases where an implied cause of action exists for violations of Fourth Amendment rights. The court also held that Mesa was not subject to qualified immunity for his actions.

In a rare en banc review of the case, the Fifth Circuit ruled that Mesa did have qualified immunity and that the Fourth Amendment protections did not apply. They also refused to answer the Fifth Amendment question answered in earlier review.

The facts-based, practical approach of the petitioner’s argument, resting on Boumediene v. Bush to assert that Constitutional protections are sourced from “practical concerns.” However, this rationale may fall flat because facts are quite different (Boumediene had to do with Guantanamo Bay, where the U.S. had de facto jurisdiction even though Cuba had de jure sovereignty, as opposed to here, where the officer was in U.S. jurisdiction, but the boy was shot in Mexico). The “lawlessness” argument that the Hernandez family’s lawyer has made, where concerns are voiced about giving too much freedom to border agents to act in a lawless manner, may be appealing, but the appellate court, specifically Judge Edith Jones in her concurrence, did not take to it. Ultimately, it is up to the Court to decide, and, as Ian Samuel and Dan Epps mention in their First Mondays podcast in the episode No. 15 of the October Term of 2016, the lawyer for the Hernandez family did exceptionally poor at oral argument.


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