Jesus Hernandez v. USA
757 F.3d 249 (2014)
Rule of Law:
A non-citizen injured outside the United States as a result of arbitrary, conscience-shocking official conduct by a U.S. law enforcement officer located within the United States may invoke the protections of the Fifth Amendment's Due Process Clause.
Facts:
- On June 7, 2010, Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican national, was with friends in a cement culvert on the Mexican side of the U.S.-Mexico border.
- The group was playing a game that involved running up the culvert's incline, touching the barbed-wire border fence, and running back down.
- United States Border Patrol Agent Jesus Mesa, Jr. arrived on the scene on the U.S. side of the border.
- Agent Mesa detained one of Hernandez's friends.
- Following the detention, Hernandez retreated to a position beneath the pillars of the Paso del Norte Bridge on the Mexican side of the border to observe.
- Agent Mesa, while still standing in the United States, then fired at least two shots across the border at Hernandez.
- One of the shots struck Hernandez in the face, killing him.
Procedural Posture:
- Hernandez's parents sued the United States, Agent Mesa, and his supervisors in the U.S. District Court for the Western District of Texas.
- The district court substituted the United States as the sole defendant for the common law tort claims pursuant to the Westfall Act.
- The district court granted the United States' motion to dismiss all claims against it, finding that sovereign immunity was not waived under the Federal Tort Claims Act's foreign country exception or the Alien Tort Statute.
- Agent Mesa moved to dismiss the claims against him, asserting qualified immunity.
- The district court granted Agent Mesa's motion to dismiss, holding that Hernandez, as an alien injured abroad with no voluntary ties to the U.S., was not protected by the Fourth or Fifth Amendments.
- The district court granted summary judgment for Agent Mesa's supervisors, concluding that the appellants failed to show the supervisors were personally involved in the incident.
- The appellants appealed all adverse judgments to the U.S. Court of Appeals for the Fifth Circuit.
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Issue:
Does the Fifth Amendment's Due Process Clause apply to a Mexican citizen, with no significant voluntary connections to the United States, who was fatally shot in Mexico by a U.S. Border Patrol agent standing on U.S. soil?
Opinions:
Majority - Prado, J.
Yes, the Fifth Amendment's Due Process Clause applies in this context because questions of the Constitution's extraterritorial reach turn on objective factors and practical concerns, not formalistic territorial lines. The court first held that the Fourth Amendment does not apply because, under United States v. Verdugo-Urquidez, it protects only 'the people' of the national community, which requires a non-citizen to have 'sufficient voluntary connections' to the United States, which Hernandez lacked. However, the Fifth Amendment protects 'any person,' so the court applied the functional test from Boumediene v. Bush, considering: 1) the claimant's status (a civilian, not an enemy combatant), 2) the nature of the location (the U.S. exercises significant 'hard power' and control at the border, even if it lacks formal sovereignty), and 3) practical obstacles (applying the 'shocks the conscience' standard is workable and Mexico's government supported the suit, eliminating foreign relations friction). The court also found a Bivens remedy appropriate due to the lack of alternative remedies and held that Agent Mesa was not entitled to qualified immunity because no reasonable officer would believe unprovoked, deadly force was lawful, regardless of where the victim stood.
Concurring - Dennis, J.
Yes, the judgment is correct. Judge Dennis agreed with the majority's conclusion but wrote separately to express doubt about the continuing validity of Verdugo-Urquidez's 'sufficient connections' test for the Fourth Amendment after Boumediene. He would decline to apply the Fourth Amendment based on pragmatic concerns that its application would be 'impracticable and anomalous' in this context, rather than on a formal classification of Hernandez as not being one of 'the people'. He joined the majority's Fifth Amendment analysis in full.
Concurring-in-part-and-dissenting-in-part - DeMoss, Jr., J.
No, the Fifth Amendment does not apply extraterritorially in this case. Judge DeMoss dissented from the majority's Fifth Amendment analysis, arguing that its analogy between the U.S.-Mexico border and the U.S. Naval Station at Guantanamo Bay is 'dubious.' He reasoned that the U.S. has no formal control or de facto sovereignty over any part of Mexico, unlike its complete and long-standing control over Guantanamo. He concluded that the majority's holding represents an unsupported expansion of the Fifth Amendment that unnecessarily creates an undefined zone of U.S. constitutional protection within a foreign sovereign nation.
Analysis:
This decision significantly clarifies the framework for the extraterritorial application of constitutional rights, distinguishing between the Fourth and Fifth Amendments. By applying the functional Boumediene test to the Fifth Amendment claim, the court established that a U.S. agent's location, combined with the nature of U.S. control in a region, can be sufficient to extend constitutional protections to a non-citizen abroad. This creates a potential 'zone of lawlessness' exception to strict territoriality, holding that U.S. officials cannot escape constitutional scrutiny for conscience-shocking conduct simply because the injury occurred across a border. The case sets an important precedent for cross-border incidents and actions by U.S. agents that have effects outside U.S. territory.
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