Hernández v. Mesa

SHOULD CONSTITUTIONAL PROTECTIONS TURN ON FACTORS BEYOND THE OFFICIAL, GEOGRAPHICAL LIMIT OF US SOIL?

Hernández and Bentacour argue that the Supreme Court should extend constitutional protections to a Mexican national shot just over the United States border by a border agent standing on U.S. soil. They contend that the Court should follow Boumediene v. Bush, 553 U.S. 723 (2008), to hold that the decision whether to apply constitutional principles in an extraterritorial context depends on practical, objective considerations, rather than on a strict rule that constitutional protections cease to apply across the United States’ formal borders. Further, Hernández and Bentacour maintain that a majority of the Supreme Court has never held that Fourth Amendment protections are strictly inapplicable to foreign nationals. Using practical considerations, they argue that the Supreme Court should apply Fourth Amendment protections to foreign nationals killed in close-range, cross-border shootings such as the shooting that killed their son. Hernández and Bentacour note that their case for Fourth Amendment protections is particularly strong considering that their son was a non-threatening teen and a resident of a tightly-knit cross-border community, that the U.S. border agents exercised complete control over the area where their son was shot, and that the agent shot their son only a few feet away from the border. Hernández and Bentacour also maintain that applying Fourth Amendment protections would improve relations with Mexico, provide legal accountability for border agents who use force against individuals on Mexican soil, and ensure that outcomes of use-of-force cases did not depend on an individual’s proximity to the border, all while protecting the fundamental right to life. Hernández and Bentacour argue that declining to apply Fourth Amendment protections in this context would create the anomalous results the Boumediene decision warns of: guaranteeing cross-border use-of-force protection to all but foreigners who lack a significant voluntary connection to the United States.

Mesa counters that Fourth Amendment protections are inapplicable to this case, because Sergio was shot in an area outside the United States’ territory and control. He notes that past Supreme Court cases refused to extend Fourth Amendment protections to foreign nationals abroad who lacked substantial ties to the United States. Mesa further contends that the Boumediene decision is inapplicable in this context because the case dealt specifically with whether the Suspension Clause applied to detainees of Guantanamo Bay—an area the United States controls by treaty, and not whether Fourth Amendment in general applied to all foreigners. Mesa argues that the United States does not have complete control beyond the Mexican border and, in fact, cannot even legally set foot on that land for a law enforcement purpose. He also maintains that the border towns no longer share the close, friendly relationship that Hernández and Bentacour claim. Further, Mesa argues that the Supreme Court should not interpret U.S. jurisdiction over the cross-border area to include unofficial jurisdiction that the United States could subjectively claim or disclaim. A periodic showing of authority in a cross-border context is not enough, according to Mesa, to make United States control over the area near the Mexican-United States border sufficiently analogous to its control over Guantanamo Bay.

IS A BORDER PATROL AGENT ENTITLED TO QUALIFIED IMMUNITY FOR USE OF FORCE WHEN THE POTENTIAL LEGAL PROTECTIONS FOR HIS ACTIONS HINGE ON FACTS HE WAS NOT AWARE OF AT THE TIME HE USED FORCE?

Hernández and Bentacour maintain that Mesa is not entitled to qualified immunity because, when he pulled the trigger to shoot their son, he had no way of knowing for certain that their son was a foreigner who did not have significant voluntary connections to the United States, or was not standing on United States territory. Further, they state that it would not have been reasonable for Mesa to attempt to infer these facts because hundreds of thousands of children living in Mexico have U.S. citizenship and the exact international border line is often uncertain. Without clear information to establish Sergio’s ties to the United States and his exact location relative to the border, Hernández and Bentacour argue that a reasonable officer would have known that it was unreasonable to use deadly force against him. Because qualified immunity doctrine is designed to protect only those officers who acted reasonably given the facts available to them and the clearly established state of the law, Hernández and Bentacour contend that granting Mesa qualified immunity based on facts he learned after the shooting would undercut the purpose of qualified immunity doctrine. They note that granting qualified immunity to Mesa would create a dangerous doctrine under which officers who act reasonably in the moment could later face liability if additional, adverse facts are discovered.

Mesa does not directly refute the argument that qualified immunity should be decided based on information an officer knew at the time he acted. Rather, he responds that a reasonable agent in his circumstances could have inferred the facts necessary to justify his use of force. Mesa asserts that qualified immunity requires an objective evaluation of whether an officer’s actions were reasonable given the facts and circumstances he was aware of when he took action. He maintains that a reasonable officer could have decided, based on the teens’ running up to the border fence and hurling rocks at him in the way alien smugglers would, that the teens were attempting an illegal entry or engaging in illegal behavior and that use of force was justified.

IS A BIVENS CLAIM APPROPRIATE IN THIS CASE?

Hernández and Bentacour argue that federal courts can hear Bivens claims where no other effective legal option is available to the injured party, so long as there are no “special factors” that would caution against hearing the case. They state that a Bivens claim is the proper and only remedy available to them. Hernández and Bentacour maintain that waiting for Congress’ blessing to allow a Bivens claim in their case would betray the judiciary’s duty to protect constitutional interests against encroachment from other branches of the government. They note that there is no potential for a successful suit under the Federal Tort Claims Act (“FTCA”) because the FTCA does not allow recovery for injuries that occur outside the United States. Further, they state that the possibility of a criminal prosecution in the United States is not reason to prevent a Bivens claim. Hernández and Bentacour also argue that seeking a remedy through the Mexican civil or criminal system would be futile because the United States would not enforce a Mexican civil damages judgment against Mesa and the United States refuses to extradite Mesa to face criminal charges in Mexico. Hernández and Bentacour contend that there are no “special factors,” such as national security or international diplomacy concerns, in this case that would suggest it would be prudent to refuse a Bivens remedy. . In fact, Hernández and Bentacour argue that international diplomacy and extraterritoriality concerns would be best served by allowing them to bring a Bivens claim.

Mesa responds that a successful Bivens claim requires both a constitutional rights violation and proof that the violated right was “clearly established” when the violation occurred. He maintains that a Bivens claim is inappropriate in this case because Sergio did not have any clearly established Fourth Amendment rights when Mesa used force against him. Mesa notes that the very fact that various federal judges have decided this case differently indicates that the right, if it exists, was not clearly established at the time he shot Sergio. Further, Mesa states that Hernández and Bentacour are not entitled to Fourth Amendment protections for the force used against their son, because Sergio was not on United States soil and did not have a significant voluntary connection to the United States when he was shot. He argues that the Supreme Court should not extend a Bivens remedy after the fact, regardless of whether Sergio’s family has another federal avenue to recover for their injuries.