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In cross-border shooting case, Supremes ask lower court to try again

June 26, 2017 by Nicandro Iannacci


On Monday, the Supreme Court erased the Fifth Circuit’s ruling in Hernández v. Mesa and asked the court to reconsider in light of its own recent decision.

In that case, Ziglar v. Abbasi, the Court did not allow Muslim men detained in the U.S. in the weeks after the 9/11 terrorist attacks to sue federal officials for constitutional violations. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971), the Court recognized a limited right to sue, but has since mostly declined to expand that right.

As detailed on Constitution Daily in February when oral arguments took place, Hernández is a dispute over a Mexican family’s ability to sue one such federal official – a U.S. Border Patrol officer – who killed their son in a cross-border incident.

Sergio Adrián Hernández Güereca, 15, died in 2010 as he stood on Mexican soil when Agent Jesus Mesa, Jr., fired his gun while on U.S. soil in Texas. The agent claimed Hernández and others were throwing rocks at him as he was attempting to detain an illegal immigration suspect; the family says Hernández was playing a game with his friends at the border location between El Paso and Juarez.

As Constitution Daily Supreme Court correspondent Lyle Denniston has explained, the case deals in large part with the question of the Constitution’s application beyond U.S. borders. The Court’s answer has been mixed over the years, with recent opinions from Justice Anthony Kennedy suggesting that there may be more cases in which constitutional guarantees can be applied extraterritorially.

The U.S. Court of Appeals for the Fifth Circuit ruled unanimously en banc – that is, with all judges on the circuit, not just the original three-judge panel – in favor of Mesa. The court found no Fourth Amendment or Fifth Amendment violations. It also granted Mesa qualified immunity on the grounds that Hernández was “an alien who had no significant voluntary connection to … the United States.”

In a relatively brief and unsigned opinion, the Supreme Court vacated and remanded the Fifth Circuit decision, asking the court to reconsider the Bivens question in light of Ziglar. It also said the court used the wrong analysis in granting qualified immunity and asked the court to reevaluate. The constitutional questions were left unaddressed.

Justice Clarence Thomas filed a short dissenting opinion noting his readiness to reject any right to sue in the first instance and to affirm the Fifth Circuit.

In a separate dissent, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, argued that Hernández’s Fourth Amendment right to the reasonable use of deadly force was indeed violated and that his family has a right to sue. Quoting Justice Kennedy in Boumediene v. Bush (2008), Breyer noted that “questions of extraterritoriality turn on objective factors and practical concerns,” not simply the quality of being within U.S. borders or not.

Justice Neil Gorsuch did not participate.

Nicandro Iannacci is a web content strategist at the National Constitution Center.

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