Natalia Trotter, Associate Member, University of Cincinnati Law Review
With the current administration’s increasing efforts to bar immigrants from entering the United States, especially at the U.S.-Mexico border, it becomes increasingly important to recognize the rights of non-citizens injured by U.S. federal law enforcement. Historically, non-citizens outside of U.S. jurisdiction have not received constitutional protection. Regardless, Fifth Amendment protections should extend, in some cases, to injured non-citizens based on the egregiousness of the actions and the location of the officer where the actions took place. However, that protection should not extend to Fourth Amendment rights for non-citizens injured outside of U.S. territory. Conducting a constitutional analysis, the Fifth Circuit in Hernandez v. Mesa should deny qualified immunity and extend Fifth Amendment protection to Hernandez.
In June of 2015, Border Patrol Agent, Jesus Mesa Jr. came upon a group of Mexican children, including fifteen-year-old Sergio Adrian Hernández Güereca. The children were running back and forth across the border while playing a game. Upon arrival, Mesa apprehended one of Hernandez’s friends on U.S. soil. Mesa then claimed that smugglers were throwing rocks at him, and in response, he shot and killed Hernandez. Hernandez was standing in Mexico when he was shot. Since Mexican courts do not have jurisdiction over U.S. federal officers, Hernandez’s parents sued in U.S. federal court. They alleged that Mesa had violated their son’s Fourth and Fifth Amendment Rights. Although federal officers are generally protected from civil liability based on the doctrine of qualified immunity, Hernandez referenced Bivens v. Six Unknown Federal Narcotics Agents. In that case, the Supreme Court held a cause of action in tort could arise due to a federal agent’s violation of the Fourth Amendment. Hernandez cited Bivens as the legal basis, which provided an implied right of action against Mesa. Although the court of appeals determined that Hernandez did not possess Fourth Amendment rights and could not bring a Fifth Amendment cause of action against Mesa based on qualified immunity, the Supreme Court vacated the ruling, finding it necessary first to decide whether a party may bring a tort suit against a federal officer under Bivens. Assuming the Fifth Circuit allows this case to proceed under Bivens, the court will have an opportunity to reassess Hernandez’s rights under the Fourth and Fifth Amendments and Mesa’s claim of qualified immunity.
Qualified Immunity Analysis
The principle of qualified immunity shields federal officers from suits brought against them as individuals. “The doctrine . . . protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” The doctrine is based on a balance between restricting federal officers from abusing their power and enabling them to perform their job without constant fear of lawsuits. In deciding if to extend qualified immunity “[t]he ‘dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’” Analyzing the qualified immunity question in Hernandez, the Fifth Circuit determined that Hernandez’s rights were unclear since he was a non-citizen without any significant voluntary connections to the U.S. and was standing outside of U.S. territory. Although the Supreme Court did not rule on whether Mesa was protected by qualified immunity, it did point out some of the problems with the Fifth Circuit’s analysis and thus vacated the ruling. The Court highlighted “that Hernandez’s nationality and the extent of his ties to the United States were unknown to Mesa at the time of the shooting” and thus could not be used to determine the reasonableness of Mesa’s actions. Based on the Court’s insight into the qualified immunity question, the Fifth Circuit on remand should rule that Mesa was not shielded by qualified immunity.
Although it appears clear no reasonable officer would shoot an unarmed fifteen-year-old boy, regardless of his citizenship, additional factors highlight the unreasonableness of Mesa’s actions. When Mesa arrived at the scene, he possessed no knowledge about the citizenship of the youth or their ties to the United States, and thus arrested Hernandez’s friend assuming he was trying to unlawfully enter the U.S. Many U.S. citizens of Mexican or Latino decent live near the border and cross back and forth every day. No reasonable officer would shoot unarmed persons, regardless of whether they were standing on the U.S. or the Mexican side of the border, knowing that they could potentially be U.S. citizens, and thus protected by the Fifth Amendment. In addition, since there is no clearly marked line separating the U.S. and Mexico, Mesa had no assurance that his actions were taken on Mexican rather than U.S. soil. A reasonable officer should know that persons, including non-citizens, possess certain constitutional rights while in U.S. territory. In his defense, Mesa claimed he was assaulted by rocks. However, Hernandez was not the person throwing the rocks. A reasonable officer would first discern the location of the threat before firing. Therefore, a reasonable officer, being unaware of Hernandez’s nationality or ties to the U.S., being uncertain about his location on the border, and being unsure about the direction of the threat, would not take lethal action, knowing the possibility that such action could violate the victim’s constitutional rights.
Fourth Amendment Analysis
The Fourth Amendment provides for “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .” In Hernandez the plaintiffs sought to bring a cause of action in tort under Bivens, claiming that Mesa violated Hernandez’s Fourth Amendment right to be secure in his person from unreasonable seizure. Ignoring Bivens, the Fifth Circuit concluded that Hernandez was a Mexican citizen, who had no real connections to the United States and was shot on Mexican soil, and thus could not claim any rights under the Fourth Amendment.  In a textualist argument, the court held that the reference to “the people” in the Amendment did not extend to aliens. In addition, the court also pointed out the policy implications against providing Fourth Amendment rights to non-citizens at the border. The Supreme Court recognized certain exceptions to the Fourth Amendment at the border, such as warrantless searches of vehicles and various surveillance techniques, including aerial surveillance, thus permitting non-citizens to possess Fourth Amendment rights would call into question many Border Patrol techniques used to ensure national security. Because of the language of the Amendment and the policy implications, the court rejected the claim that Fourth Amendment rights should be extended to non-citizens outside of U.S. territory.
Disagreeing with the Fifth Circuit, Justices Breyer and Ginsburg dissented. The dissent focused on the uniqueness of the border situation where “international law recognizes special duties and obligations that nations may have in respect” to border areas. Additionally, the two justices pointed to the anomaly produced by allowing or denying a victim family’s suit “depending upon whether Hernandez had been hit just before or just after he crossed an imaginary mathematical borderline.” Limiting the decision to the border context, the dissent claimed Hernandez should receive Fourth Amendment protection.
Despite the strong arguments provided by the dissent, on remand, the Fifth Circuit should follow its previous decision and decline Fourth Amendment protection for Hernandez. The text of the Fourth Amendment provides protection to “the people” implying either citizens and visa holders, or persons standing on U.S. soil. Permitting the extension of “the people” to a person who had no ties to the United States and was outside of U.S. territory would provide a virtually unlimited application of the Amendment to all persons at or near the border. Additionally, while international treaties of border collaboration do exist between countries, these agreements do not require the extension of one country’s constitutional protections to citizens of the other country. Despite the dissent’s belief in a limited application of its decision, extending Fourth Amendment protection to Hernandez would call into question many of the Fourth Amendment exceptions permitted at the border, such as searches of cars and aerial surveillance. Providing Fourth Amendment protection to Hernandez would obliterate the language of the Amendment, provide unlimited constitutional protections to non-citizens outside of U.S. jurisdiction, and create constitutional concerns about current policing techniques at the border.
Fifth Amendment Analysis
The Fifth Amendment states that no person should “be deprived of life, liberty, or property, without due process of law.” Hernandez’s claim focused on the aspect of the Amendment, which “prevents the government from engaging in conduct that ‘shocks the conscience’ or interferes with the rights ‘implicit in the concept of ordered liberty.’” While the Fifth Circuit first held that Hernandez did possess Fifth Amendment rights, on rehearing the case en banc, the court declined to rule on the Fifth Amendment issue holding that qualified immunity barred Hernandez from bringing a Fifth Amendment claim against Mesa. If Mesa were not shielded by qualified immunity, the Fifth Circuit’s initial analysis should apply. Unlike with the Fourth Amendment inquiry, the Fifth Circuit found that the Fifth Amendment’s “text does not limit the category of individuals entitled to protection.” Rather than focusing on the class of persons covered under the Fifth Amendment, the court looked at the “‘nature of the sites’ where the alleged violation occurred” and the level of control exerted by the United States at those sites, in determining whether or not to extend protection to persons at those locations. Although “the United States has no formal control or de facto sovereignty over the Mexican side of the border” the court found that the constant presence of Border Patrol agents and the level of enforcement at the border “weigh in favor of recognizing some constitutional reach.”
If the court finds that Mesa is not shielded by qualified immunity, the court should follow its own Fifth Amendment analysis in deciding to extend protection to Hernandez. The focus in the Fifth Amendment context is not on whether Hernandez was a U.S. citizen or had significant ties to the U.S., but rather on whether Mesa was operating inside of a U.S. controlled area. When the incident occurred, Mesa was standing and shot from the U.S. side of the border, which is under the control of U.S. federal law enforcement. Mesa was clearly operating in a location where the U.S. government exercised control. The Fifth Amendment is designed to prevent government officials from participating in egregious conduct. Mesa shot an unarmed fifteen-year-old boy. Despite Mesa being allegedly assailed by rocks, he did not aim at the persons assaulting him, but rather at an unarmed, underage victim. Because Mesa shot from an area under U.S. control and because his actions were egregious, Hernandez should receive protection under the Fifth Amendment.
Although Hernandez cannot receive Fourth Amendment protection, in the interest of preserving the rights of non-citizens not to be deprived of life, the Fifth Circuit should deny Mesa’s qualified immunity claim and extend Fifth Amendment protection to Hernandez. Providing Fifth Amendment rights to non-citizens at the border will serve to deter future egregious actions carried out by U.S. Border Patrol officers.
 Hernandez v. Mesa, 137 S. Ct. 2003, 2005 (2017).
 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed.2d 619 (1971).
 Hernandez 137 S. Ct. at 2006.
 Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815 (2009) citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102, S. Ct. 2727, 73 L. Ed. 2d 396 (1982).
 Pearson 555 U.S. at 231.
 Hernandez 137 S. Ct. At 2007 citing Saucier v. Katz, 533 U.S. 194, 202, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001).
 Hernandez v. United States, 785 F.3d 117, 120 (5th Cir. 2015).
 Hernandez 137 S. Ct. at 2007.
 U.S. Const. amend. IV.
 Hernandez, 785 F.3d at 119.
 Hernandez v. United States, 757 F.3d 249, 264 (5th Cir. 2014).
 Hernandez, 757 F.3d at 267.
 Hernandez, 137 S. Ct. at 2011.
 Id. at 2010.
 Id. at 2010.
 U.S. Const. amend. IV.
 Hernandez, 757 F.3d at 267 citing United States v. Salerno, 481 U.S. 739, 746, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987).
 Hernandez, 757 F.3d at 268.
 Id. at 269.
 Id. at 270.