There is established Supreme Court precedent that a law enforcement official can be sued for damages if they violate a person’s constitutional rights, but what if the person suing is not an American and was in another country when they were harmed?
That is the question at the core of two federal cases involving border patrol agents in the United States who allegedly fired their weapons across the border, killing individuals in Mexico. One of those cases, Hernandez v. Mesa, will be heard by the Supreme Court during its next term.
Generally speaking, law enforcement officials are protected by qualified immunity for actions taken in the course of their official duty, but the 1971 case of Bivens v. Six Unknown Named Agents carved out an exception that allowed for civil claims against those federal officers who are accused of violating the Constitution under the color of their official authority.
The family of 15-year-old Sergio Adrian Hernandez Guereca claims that they can make what's known as a Bivens claim against Agent Jesus Mesa Jr., who is accused of fatally shooting their son. The family claims that the teen and his friends were playing a game where they ran to touch the border fence, then ran back. Mesa allegedly fired across the border while standing on the U.S. side, with Hernandez still in Mexico.
"The deadly practice of agents, standing in the United States and shooting innocent kids across the border must be stopped," Hernandez family attorney Bob Hilliard said in a statement. "It’s never right. It’s never constitutional. This is one of those times when morality and our U.S. constitution line up perfectly."
In April 2012, the Obama Justice Department told a different story. Following an investigation, they said that the shooting happened when smugglers were "attempting an illegal border crossing hurled rocks from close range at a CBP [Customs and Border Protection] agent who was attempting to detain a suspect."
The probe involved the FBI, Department of Homeland Security's Inspector General's Office, and prosecutors from the Justice Department's Civil Rights Division and the U.S. Attorney's Office for the Western District of Texas. Officials interviewed more than 25 witnesses and reviewed video and evidence from the scene. At the conclusion of the investigation, the DOJ said there was "insufficient evidence to pursue federal criminal charges," and "that no federal civil rights charges could be pursued in this matter."
The DOJ noted that "on these particular facts, the agent did not act inconsistently with CBP policy or training regarding use of force." Officials also determined that they could not show that Mesa had the intent necessary for a civil rights violation, plus there was a lack of jurisdiction for a civil rights case because Hernandez was outside the U.S.
The Hernandez family's civil case, meanwhile, has bounced up and down the judicial system. The Supreme Court first heard the case in 2017, but after a 4-4 split, sent it back down to the Fifth Circuit Court of Appeals. The case went before the full Fifth Circuit for an en banc hearing in 2018, which resulted in the Court of Appeals ruling against the Hernandez family.
The appellate court cited several issues that led to their decision. For starters, there was the argument that a foreign person on foreign soil does not have rights under the U.S. Constitution. Additionally, the court noted that because this is a matter involving the border, there are national security and foreign policy issues involved, which fall under the authority of the Executive and Legislative Branches, not the judiciary.
Speaking of the legislature, the Fifth Circuit stated that Congress has passed laws that lead them to believe that they would be against allowing civil claims in situations like this. The court pointed to the Civil Rights Act, which is limited to "citizen[s] of the United States or other person[s] within the jurisdiction thereof," the Federal Tort Claims Act, which excludes "[a]ny claim arising in a foreign country," and the Torture Victim Protection Act of 1991, which gives federal officials exemption from liability.
With regards to national security, the Fifth Circuit referred to a Third Circuit case where the court denied a Bivens claim against a TSA agent who was accused of violating someone’s constitutional rights.
The Fifth Circuit recognized that a border patrol agent should not be able to shoot someone and get away with it simply because the other person was on the other side of the border. “For cross-border shootings like this one,” the court pointed out, “criminal investigations and prosecutions are already a deterrent.”
That being said, the court noted that government agencies had already investigated Mesa and did not bring any charges against him.
Mesa's attorney, Randy Ortega, believes the Fifth Circuit got it right.
"The case, in my opinion, is clear," Ortega told Fox News. "The Constitution only provides redress for acts occurring within the United States, thus the Fifth Circuit ruling is on point. To allow those injured in foreign jurisdictions to bring suit in the United States would result in a flood of litigation and a chilling effect on those protecting our borders."
The Mexican government got involved in the case, filing an amicus brief in support of the Hernandez family. Mexico argued that this case is far simpler than Mesa's defense and the Fifth Circuit make it out to be. This is a case where a law enforcement official is accused of using undue deadly force against someone, they argued.
“Agent Mesa was clearly on U.S. soil when he shot Sergio Hernández, and there are no practical or political difficulties in applying U.S. law regardless of which side of the border Sergio was on,” Mexico’s brief said.
Mexico also argued that this is not a case involving national security, as it “has nothing to do with international terrorism, espionage, or any other national security concerns.”
What it boils down to, they claimed, is a law enforcement agent shooting someone “in such a way that he could have hit nationals of any country on either side of the border.”
Siding with Agent Mesa, the Trump administration filed their own amicus brief in April 2019. They supported the Supreme Court hearing the case, in light of a similar Ninth Circuit case – Swartz v. Rodriguez – that was decided the opposite way. The government stated that the Fifth Circuit, in their ruling against Hernandez, “appropriately identified several special factors that counsel against implying a damages remedy here.”
The Supreme Court will hear the case, which was consolidated with the Swartz case, during the term beginning this October. Should they reverse the Fifth Circuit’s decision, the Hernandez family would be allowed to move forward with their lawsuit against Agent Mesa, but would still have to prove their case in court.