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A Bullet Can Cross the Border; Can the Constitution?

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By Casey C. Sullivan, Esq. on October 19, 2016 2:57 PM

Sergio Hernandez died in Mexico, but the bullet that killed him was fired from the United States. The 15-year-old boy was shot in the head by a Border Patrol agent in 2010. The agent, Jesus Mesa, initially said Hernandez was throwing rocks in order to distract agents from a smuggling operation; his parents say he was simply playing with friends along the unmarked border that separates El Paso, Texas, from Juarez, Mexico.

The Hernandez family sued, alleging that Mesa violated the Constitution when he killed their son, but an en banc Fifth Circuit tossed the suit. Now, the Supreme Court will take up Hernandez's case, ruling later this term on how far constitutional protections against excessive force can reach.

Three Issues at Play

The Court, last Tuesday, agreed to hear two issues presented by Hernandez's case and receive briefing on the third. The first involves what sort of analysis should be used when applying the Fourth Amendment's prohibition on unjustified deadly force outside of the United States: a formalist or a functionalist analysis? That is, do functional, "objective factors and practical concerns" govern the Constitution's extraterritorial application, as the Court held in Boumediene v. Bush? Or does a more formalistic analysis reign, as the en banc Fifth found when it ruled that Hernandez lacked the "significant voluntary connection" to the U.S. needed for the Fourth Amendment to apply?

Secondly, the Court will hear arguments about whether the Border Patrol agent's claims of qualified immunity can be impacted by facts unknown at the time. Hernandez, for example, was a Mexican citizen, but there was no way for Mesa, the agent, to know his citizenship or legal status at the time he was shot.

Finally, the Court asked both sides to brief whether Hernandez's parents may rely on Bivens v. Six Unknown Federal Narcotics Agents to bring their suit. Bivens provides a cause of action for Fourth Amendment violations, but the U.S. government has said that the case "should not be extended to the sensitive cross-border context of this case."

More Than Just One Shooting

Hernandez's case also brings up sensitive issues surrounding race, police violence, and the relationship between the United States and Mexico. Hernandez's killing caused widespread outrage in Mexico, highlighting claims that American Border Patrol agents often acted violently and with impunity. In the petition for cert, for example, Hernandez's lawyers cite a report by the Los Angeles Times detailing the Border Patrol's pattern of absolving itself of responsibility when lethal force is used. (A citation the Times was quick to point out.)

The Solicitor General's office had urged the Court to deny review, arguing that instances such as Hernandez's death should be handled by government prosecution or by the Mexican courts themselves.

The Mexican government also weighed in on the case, urging review. "Applying U.S. constitutional law in such a case does not disrespect Mexico's sovereignty," the government wrote. "Any invasion of Mexico's sovereignty occurred when Agent Mesa shot his gun across the border at Sergio Hernández -- not when the boy's parents sought to hold Agent Mesa responsible for his actions."

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