This is one of the more interesting jurisdictional and constitutional questions you'll read about for a while: does the family of an unarmed Mexican national, shot across the border by a Border Patrol agent standing in the United States, have any cognizable claims whatsoever?
The answer, for now, is yes: the Fifth Circuit held, earlier this week, that the family could bring a Fifth Amendment claim against the agent himself, but no claims against his supervisors, the agency, or the U.S. government. The panel held that Border Patrol Agent Jesus Mesa Jr.'s conduct was "arbitrary," "shocked the conscience," and could for the basis for a Fifth Amendment claim, even though the victim, 15-year-old Sergio Adrian Hernandez Guereca was not a U.S. citizen and was killed in foreign territory.
Teenage Games Turn Deadly
What led to Guereca's death? According to the opinion's recap of the alleged facts, the teenager and his friends were playing a game where they ran up a concrete calvert, touched the barbed wire on the border, and then ran back. After Agent Mesa arrested one of the boys, the unarmed victim hid under a nearby bridge. When he peeked out at the agent, Mesa allegedly fired two shots in his direction, one of which struck the boy in the face, killing him.
Only Claim is Against The Agent
In a lengthy and exhaustive opinion, the panel reviewed the victim's family's claims against the United States, the Border Patrol Agency, and the agent's supervisors and came to the same conclusion: none of the claims could be brought, either due to a lack of jurisdiction, or sovereign immunity.
The panel was also unwilling to recognize a Fourth Amendment search and seizure claim brought on behalf of a noncitizen against a border patrol agent, but it had no such trouble recognizing a Fifth Amendment claim for "arbitrary conduct that shocks the conscience." While the Fourth "applies only to 'the people,' a term of art, the Fifth Amendment applies by its express terms to 'any person.'"
And Agent Mesa's alleged conduct would definitely shock the conscience:
[I]f ever a case could be said to present an official abuse of power so arbitrary as to shock the conscience, the Appellants have alleged it here. According to the Appellants' complaint, Hernandez had retreated behind the pillars of a bridge when, unprovoked, Agent Mesa fired two gunshots in his direction. One of the gunshots struck him in the face and killed him. On these facts, Agent Mesa had no reason to suspect that Hernandez had committed any crime or engaged in any conduct that would justify the use of any, let alone deadly, force.
The clearly shocking and illegal conduct was also the reason why qualified immunity did not protect the agent himself.
In order to justify this unprecedented extraterritorial application of the Fifth Amendment, the panel cited Boumediene v. Bush, where the U.S. government's control over Guantanamo Bay made extraterritorial application of the Fifth Amendment possible. Here, the Border Patrol agents often exercise control over territory at and even over the border. The court also noted that a strict territorial approach would create "zones of lawlessness" that allow agents to move in and out of "constitutional strictures."
Also important was the court's holding that extending the Fifth Amendment to these cross-border zones "would not force agents to change their conduct to conform to a newly articulated standard," as they are already not allowed to engage in "gross physical abuse" of aliens inside our borders. This merely extends that prohibition to conduct that is carried out on U.S. soil, but injures those across the border.