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When bullets cross the border, should Constitutional protections follow?

Case concerning a cross-border shooting brings the possibility of extraterritorial application of the United States Constitution to the Supreme Court.

In order to separate areas governed by different groups, it is the practice of governments to create political boundaries by dividing lines between countries, states, and cities.  Political boundaries, unlike natural physical ones, are invisible and man-made products of wars, treaties, and political processes.  There is no “line in the sand” or “crack in the earth” to demarcate where one country ends and another begins.  The only difference between the land on one side of a political boundary and the land on the other side is simply, who owns it.  To those who live along political boundary lines, the division can seem arbitrary and anomalous.  The life and culture of groups of people are not dependent on which side of the invisible line they live on, and this is especially true in an era of increased globalization and border fluidity.

Though political scientists and policymakers are hesitant to draw on universal truths and morals, one thing nearly everyone is able to agree on is that the unjustified killing of another is immoral and reprehensible, no matter which side of a political border you stand on.  Despite this, the Supreme Court of the United States heard oral arguments for a case in which these lines of political geography drawn on a map, could determine whether or not a family receives justice for the killing of their teenage son.

“…Mesa, who stood on the U.S. side, pulled his gun and shot three times at Hernandez from 60 feet away, one shot hitting Hernandez in his head.”

In the case Hernandez v. Mesa, the family of 15-year-old Sergio Adrian Hernandez, a Mexican citizen, is suing a United States Border Patrol agent, Jesus Mesa Jr. in federal court for the killing of their son, alleging that he violated the Fourth and Fifth Amendments of the United States Constitution.  In the summer of 2010, Sergio Hernandez and his friends were playing in a culvert along the United States-Mexico border.  This culvert, a concrete canal under the bridge that connects Juarez, Mexico to El Paso, Texas, serves as a political boundary separating the United States from Mexico.  Hernandez and three of his friends were playing a game in which they dared each other to run from one side of the culvert to the other, touching the U.S. fence before running back to the Mexico side.  As the American Bar Association reported, “the children were playing in plain sight; they were not trying to smuggle themselves or goods into the United States, and they were unarmed.”

“…Mesa has not been subject to any disciplinary action by the United States Customs and Border Protection.” 

United States border guard, Jesus Mesa, was patrolling the border on bicycle while the boys were playing.  Mesa caught one of the boys, while the others ran and hid behind a pillar underneath the bridge on the Mexican side of the culvert. When Sergio Hernandez peeked out from behind the pillar, Mesa, who stood on the U.S. side, pulled his gun and shot three times at Hernandez from 60 feet away, one shot hitting Hernandez in his head.  The American Bar Association also reported that “neither Mesa nor any other Border Patrol agents who arrived on the scene offered any assistance to Hernández; instead, they got back on their bikes and left.  Hernández died where he was shot, on the Mexican side of the culvert.”  Initially, Mesa claimed that he shot Hernandez in self-defense and that the boys were throwing rocks at him.  Cell phone video of the incident taken by a bystander and released by Univision shows that claim to be false.

The shooting was investigated in the United States and in Mexico, but Mesa has not been prosecuted in either country.  Officials in the United States did not prosecute after determining that they lacked jurisdiction because Hernandez was outside of the United States when he was killed.  Mexican officials charged Mesa with the killing, but the United States refused to extradite him.  Additionally, Mesa has not been subject to any disciplinary action by the United States Customs and Border Protection.  Left with no remedy for the death of their son, the Hernandez family sued Agent Mesa for damages, claiming that he acted in violation of the United States Constitution when he shot and killed Sergio Hernandez.

The United States District Court for the Western District of Texas dismissed the claims, ruling that the Fourth Amendment’s restriction on the use of deadly force does not apply outside the U.S. border and that the Fifth Amendment claim for excessive force could be considered under the Fourth Amendment only.  The United States Court of Appeals for the Fifth Circuit upheld the district court’s decision, holding that Agent Mesa was entitled to qualified immunity on the Fifth Amendment claim and that the Fourth Amendment claim did not apply.  Hernandez appealed to the Supreme Court of the United States and was granted certiorari.  Oral arguments were heard at the Supreme Court on February 21, 2017.

A definitive ruling by the Supreme Court would not determine the constitutionality of Mesa’s conduct, but would determine whether people standing in Mexico and killed by U.S. border patrol agents have a constitutional right to sue for damages in the United States.  If deemed justiciable, the Hernandez family will likely prevail in their Fourth Amendment challenge to Mesa’s actions.  The Fourth Amendment of the United States Constitution protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”  When a government actor kills someone, that actor has effectuated a seizure of the person under the Fourth Amendment.

The job of the court is then to determine whether that seizure was reasonable.  When a government officer conducts a seizure in violation of the agency’s policy, it tends to be presumptively unreasonable.  The policy of U.S. Customs and Border Protection is that “deadly force is authorized anytime there’s a reasonable belief a subject poses an imminent danger of death or serious physical injury to the agent or another person.”  Because Sergio Hernandez was unarmed and seemingly posed no threat to the life of Mesa or others, the critical issue arises in whether Sergio Hernandez, a Mexican citizen, is a member of “the people” that the Fourth Amendment was written to protect.

“The outcome of the case will depend on whether the Supreme Court adopts the formalist approach promoted by the U.S. Government, or the functionalist approach adopted by the Hernandez family.”

In deciding whether the parents of Sergio Hernandez have standing to sue in the United States, the Supreme Court has articulated three issues and has heard oral arguments on each.  The three issues are (1) whether the Fourth Amendment applies outside of the United States, (2) whether Mesa is entitled to qualified immunity, and (3) whether Hernandez’s family has a cause of action under Bivens (a Supreme Court case which established that a violation of one’s Fourth Amendment rights by federal officers can give rise to a federal cause of action for damages for unlawful searches and seizures).

The outcome of the case will depend on whether the Supreme Court adopts the formalist approach promoted by the U.S. Government, or the functionalist approach adopted by the Hernandez family.  Under a formalist approach, the Court would look simply at the location of the violation, drawing a strict line between Fourth Amendment conduct that occurs inside of the United States and conduct that occurs outside of the U.S. border.  Under a formalist approach, the Hernandez family’s claims would likely fail.  The functionalist approach on the other hand, considers the totality of the circumstances without applying a rigid formula.  The location of the violation alone will not deem the claim nonjusticiable, instead, the Court will consider location along with a variety of other factors and concerns.

Arguments before the Supreme Court in late February were centered on this debate of formalism versus functionalism.  Robert Hilliard, counsel for the Hernandez family, asked the Court to consider a totality of the circumstances rather than location alone, and to adopt the rule that, “If all of the conduct happens inside the United States and there’s a close-proximity cross-border shooting, then the Fourth Amendment constraints on deadly force apply.”  In support of Hilliard’s position, Justice Ginsburg posed the question, “Does it make a whole lot of sense to say if the officer shoots somebody on the U.S. side of the border, good Bivens claim?  If the officer standing in the same place shoots somebody who is just across the border, no claim?  That doesn’t make a whole lot of sense, does it, to distinguish those two victims?”  In return, Randolph Ortega, counsel for Agent Mesa, argued, “it’s very distinguishable because of the very real border.  Wars have been fought to establish borders.  The border is very real.”

“…the Court’s decision will effectively draw a line as to where the protection of the United States Constitution extends.”

At the conclusion of oral arguments, members of Supreme Court seemed to be divided on the issue, four-to-four, but the case is still pending.  As incidents of cross-border shootings have dramatically increased over the past ten years, the Court will need to balance the need to hold federal agents accountable, with the implications that extending constitutional protections extraterritorially may have on other areas of foreign affairs.  Members of the Court have specifically voiced concerns over the implications that the rule provided by Hilliard could have on drone activities outside of the United States.

If the Supreme Court delivers a tied opinion, it will have the effect of reaffirming the lower court’s decision that the Hernandez family has no right to sue, leaving the family with no constitutional remedy for the death of their son.  Alternatively, the Court could hold off on its decision until President Trump’s Supreme Court nominee is confirmed and have the parties argue the case again in front of a nine-justice panel.  Either way, the Court’s decision will effectively draw a line as to where the protection of the United States Constitution extends. Whether the line will be congruous with the political boundaries or extend past them is up to the eight, potentially nine, justices of the Supreme Court.  This decision could not come at a more crucial time as it coincides with an increase in policy debate concerning the fluidity or finality of political boundaries.

Cydney Joyner
About Cydney Joyner (12 Articles)
Cydney Joyner is a third year law student and serves as an Associate Editor for the Campbell Law Observer. She is originally from Winston-Salem, NC. She attended undergrad at Salem College, a women's college in Winston-Salem, where she studied Political Science, International Relations, and Religion. During the summer following her first year of law school, she worked at the Buncombe County District Attorney's Office in Asheville, NC. Her legal interests are criminal law, international law, and constitutional law. This summer Cydney is interning at the U.S. Attorney's Office for the Western District of NC in Asheville.