On June 7, 2010, 15-year Mexican boy Sergio Hernandez was playing with friends near the border between the U.S. and Mexico. They were playing on the culvert of the Rio Grande between El Paso, Texas and from Juarez, Mexico. Sergio Hernandez and his friends were playing by running up the to the US border, to touch the fence on the US side of the border and then run back to the Mexican side of the border. U.S. Border Patrol Agent Jesus Mesa detained one of the friends in the U.S. side. Sergio Hernandez ran back to the Mexican side but was shot by the agent who fired two shots at his direction. According to the attorney for the agent, Sergio Hernandez had been arrested twice before in the US for smuggling, The agent’s version of events is that Sergio Hernandez was throwing rocks at him.
Hernandez’s family sued Jesus Mesa for damages in federal District Court in Texas claiming that the agent was in violation of the U.S. Constitution which prohibit unjustified use of deadly force by law enforcement agents. The agent moved for dismissal arguing that Sergio Hernandez had no constitutional protection because he was an alien who had no voluntary attachment to the U.S. and who was on the Mexican side when he was shot. The federal District Court applied a formalist test and decided that the constitutional protection ends at the border and therefore does not protect aliens like Sergio Hernandez. The Hernandez family appealed to the U.S. Court of Appeals for the Fifth Circuit. Hearing the case en banc, The Appellate Court held that the agent was entitled to qualified immunity and that the Sergio Hernandez had no claim under the Fourth Amendment because he was a foreign citizen, had no significant voluntary attachment to the U.S. and was on foreign soil when he was killed.
The U.S. Supreme Court has agreed to hear the case and to answer the following three questions:
- Does a formalist or functionalist analysis govern the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States?
- May qualified immunity be granted or denied based on facts – such as the victim’s legal status – unknown to the officer at the time of the incident?
- Can the claim in this case be properly asserted under Bivens v. Six Unknown Fed. Narcotics Agents, which governs when federal agents may be liable for damages for violating an individual’s constitutional right?.