Academic journal article American University Law Review

Shoot First, Ask Later: Constitutional Rights at the Border after Boumediene

Academic journal article American University Law Review

Shoot First, Ask Later: Constitutional Rights at the Border after Boumediene

Article excerpt

INTRODUCTION

On June 7, 2010, a fifteen-year-old Mexican national, Sergio Adrian Hernandez Guereca, and his friends were playing a game on the Mexican side of a cement culvert that separates Mexico from the United States.1 The game was "running up the incline of the culvert, touching the barbed-wire fence separating Mexico and the United States, and then running back down the incline."2 United States Border Patrol Agent, Jesus Mesa, Jr., approached the group of friends during the game, and detained one of them.3 Hernandez ran behind a bridge's pillar in Mexico to avoid also being seen and detained by Agent Mesa.4 For no apparent reason, once Agent Mesa detained Hernandez's friend, and while standing in the United States, he turned and fired gunshots at Hernandez, who was still in Mexico.5 One of Agent Mesa's gunshots hit Hernandez directly in his head, killing him instantaneously.6

Hernandez's parents sued the United States, Agent Mesa, and unknown federal employees for their son's death, asserting eleven claims, including violations of Hernandez's Fourth and Fifth Amendment rights against the use of excessive, deadly force.7 The Fifth Circuit denied Hernandez Fourth Amendment protection on two grounds: first, the plain meaning of "the people" in the text of the Fourth Amendment precluded protection of Hernandez because the right extends only to U.S. citizens; and second, even if Hernandez could bring a Fourth Amendment claim, under the sufficient connections test enumerated in United States v. Verdugo-Urquidez,8 he lacked a sufficient connection to the United States to trigger constitutional protection.9 The court, however, granted Hernandez Fifth Amendment protection under the Due Process Clause because the term "any person" in the Amendment includes both U.S. citizens and aliens.10 Additionally, the court applied the three-factor test from Boumediene v. Bush11-which analyzes: the citizenship and status of the alien-detainee; the nature of the site where the incident occurred; and practical obstacles in awarding constitutional protection-to extend constitutional protection to Hernandez.12

The U.S. Court of Appeals for the Fifth Circuit reheard the case, en banc, in 2015 to determine whether Agent Mesa was entitled to qualified immunity.13 The Fifth Circuit affirmed its previous dismissal of Fourth Amendment protection to Hernandez by finding that he failed to allege a constitutional violation.14 Additionally, the court reversed its prior grant of Fifth Amendment protection to Hernandez by ruling that he did not clearly establish a right to any constitutional protection and that Agent Mesa could not reasonably have known that his conduct would have potentially violated the Constitution.15 At the close of the opinion, the Fifth Circuit left open the possibility that Verdugo-Urquidez is not the sole authority in determining extraterritoriality and, in the future, Boumediene may be the correct avenue in pursuing claims of extraterritorial constitutional violations.16

Tragically, Hernandez's death is just one example of the vast history of U.S. Border Patrol abuse of discretion at the U.S.-Mexico border.17 The Supreme Court has yet to clearly establish whether the Constitution protects foreign nationals, located outside U.S. territory, who are injured by U.S. officials.18 In 1990, the Court in Verdugo-Urquidez first confronted the question of to what extent the Constitution applies to an alien in a foreign territory when U.S. agents are involved. The Court applied a "sufficient connections" test to deny constitutional protection to a foreign national, who was seized by Mexican officials in Mexico then transported to the United States for trial.19 The sufficient connections test requires courts to determine whether a foreign national established sufficient, significant relations to the United States to be entitled to constitutional protection.20 Almost two decades later, in Boumediene, the Court rejected Verdugo-Urquidez's sufficient connections test and instead created a functional approach to determine whether the Constitution applies extraterritorially. …

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