Hernandez V. Mesa is a case that is currently being heard in the United States court of appeal, and it has brought a debate of how far the jurisdiction of United States border patrol agents should extend beyond the border. Furthermore, the implications that this case will bring between USA and Mexico and also other aspects. Also, the case came on a writ of certiorari to the court of appeals in the USA for the fifth circuit addressing the issue of whether a Mexican national can bring legal actions against law enforcement agents of the US government under the constitution of USA (Mitchell, Barry, and Julian V Roberts).
The case is all about the fatal shooting of a fifteen-year-old boy known as Sergio Hernandez in 2010 while playing with his friends below the bridge leading to the United States border. The boy engaged in an innocent game of dare, by running up the slope towards the United States touching the barbed wire fence and running back down. A US border officer known as Jesus Mesa arrived at the scene and caught up with Hernandez who was unarmed and not trying to gain entry into the US. The boy ran behind a bridge pillar of the culvert, but Mesa shot the boy in the head as he peered out from behind the pillar (Browne-Miller, Angela).
Neither Mesa nor even other border patrol agents who arrived at the scene tried to help Hernandez. Instead, they did nothing but got back and rode their bikes away from the scene. Hernandez died on the spot on the Mexican side of the culvert. Despite all this, there was no public official that accounted of what happened. The customs and border protection did an investigation on the issue, and they concluded that there were no grounds for charging Mesa with any of the crime against him. In Mexico, the charge of murder was made to Mesa, and the country asked the United States to extradite him, but the government refused to do that (Dershowitz, Alan M). Due to this, Hernandez parents filed a lawsuit in the US federal district court against the government and the custom border protection official included Mesa.
The court, however, dismissed the claims of the accused pointing out that there were no grounds for charging the defendants. However, a panel of the fifth circuit reinstated the action against the defendants claiming that the family of Hernandez was entitled to trial of the claim that the killing of their son shows great violation of the due process clause of the Fifth Amendment (Hails, Judy). Despite all this, the fifth circuit later decided to reverse the decision, and they dismissed the family's claims.
The following is because the court ruled for Mesa on different grounds namely a three-judge panel earlier ruled for Mesa and also in part for Hernandez. Due to the dismissal, the family took the matter to the Supreme Court so as to try and obtain justice on the two issues. Mexico country further filed a support petition of Hernandez petition and the court further added this issue of whether the claim, in this case, can be asserted under Biven V. 6unknown named agents of the federal Bureau of Narcotic 403 U.S. 388 (1971), (Davis, William A).
After looking at the overview of the case, there is also need to look at the legal issue involved in the case and also how other courts have dealt with such a case or any other case that look similar to that. There are three separate legal issues involved in this case to determine whether the constitutional rights apply to the non-citizens who are outside the United States. One of the legal issues is whether the fourth amendment applies outside of the United States (Fletcher, George P). The Supreme Court has two different approaches to the application of the constitutional rights. First of all is the formalist approach which notes that a four-justice plurality of the Court has said that the four amendments do not protect non-citizens from unreasonable searches by any government agents outside the USA.
The following approach applies in certain circumstances where an individual cause of action against federal officers for a violation of constitutional rights. An example of cases in the United States that has applied this approach is United States V. Verdugo-Urquidez 494 U.S. 259(1990).The case is formalistic since it draws a strict line between the government searches and seizures in the USA and government searches and seizures outside which are not (Davis, William A).
Another approach is the functional approach where the court rules that the suspension clause which looks at protecting the rights of non-citizens may apply outside the United States depending on certain factors and concern and not formalism of any kind. An example of a case that used the functional approach is Bourmediane V. Bush, 553 U. S. 723(2008).The reason for using the following approach is because it depends on case- specific aspects, a factual consideration that goes into the practical application of the constitution and not rigid formula (Fried, Charles).
In the Hernandez V. Mesa case, Hernandez parents argue that functional approach does apply. Referring to other cases mentioned above, Justice Kennedy did concur with Verdugo-Urquidez thus rejected formalized approach. The following also applies to the rejection of formalism in Boumediene. The parents further note that the fourth amendment does apply in the functional approach (More, Harry W). Their argument is that Mesa shot Hernandez very close to the border and the boy was unarmed and a member of the intertwined national border community. Accordingly, the parents also note that applying the fourth amendment of the constitution will not hurt any relations with Mexico (Mitchell, Barry, and Julian V Roberts).
On the part of the government, they argue for the formal approach. From the other cases, mentioned, the argument of the government is that nothing in Boumediene undermines the court's formal approach (Hails, Judy). The main reason for this is that Boumediene dealt with the extra territorial application of the rights of the people in Guantanamo bay where the government exercises sovereignty and is almost in control of the place. Therefore, Hernandez V. Mesa case does not apply the fourth amendment because USA does not partly own Mexico thus it rules for the formal approach (More, Harry W).
Another legal issue involved in this case is whether Mesa is entitled to qualified immunity. Qualified immunity is where an officer is immune from any responsibility for violation of constitutional rights (Hull, N. H, and Peter Charles Hoffer). Whether the conduct is not unconstitutional or does not violate constitutional rights which a reasonable person would have known then the court can use various aspects as listed above. The following means that the court can rule that the right in a particular case is not clearly established and also look at whether what the officer did is constitutional in the first place.
To Hernandez's parents, they argue that according to the Fifth Amendment, Mesa did violate rights of their boy by use of excessive force against him. Therefore, Mesa should not be entitled to qualified immunity. The fact that Mesa did not know that Hernandez was a Mexican citizen with no connection at the time of the shooting to the United States, the following shows that Mesa cannot claim that what he did was not constitutional and also that he indeed violated the constitutional rights.
Therefore, with no reasonable doubt, there is no officer in Mesa's shoes would have thought it as lawful to open fire to a person who was unarmed and not posing any threat to anyone (Mitchell, Barry, and Julian V Roberts). On the part of the United States government, they argue that indeed Mesa was entitled to qualified immunity. On the fact that the government agrees with Hernandez's parents is that the court should judge Mesa's knowledge during the time of the shooting. However, where the government disagrees with Hernandez parents is when they say that the court should not just assume that Hernandez was a US citizen which he was not.
The main question that should be asked is whether any officer in Mesa's shoes would have known that shooting the boy who was unarmed is violating the fifth amendment and also if he or she would have known the nationality of Hernandez at the moment. The following shows that indeed no case in the United States can address the application of the Fifth Amendment by use of force in shooting a person of unknown nationality outside the United States.
Another legal issue that is involved in thecae is whether Hernandez parents have any cause of action under Bivens. It is very clear in the US Constitution that there are no civil rights that can be self-executed and also there is no statutory basis for individuals to sue any federal officer for violating the following civil rights (Porter, Mary Cornelia, and G. Alan Tarr). Despite all this, the US constitutions do recognize any action against the federal officer in Bivens. Application of Bivens can be in certain contexts, but it is important to know that federal courts to sometimes refuse claims of Biven under special factors of counsel hesitation. The following factors mean that when the circumstances suggest that the Congress should decide the appropriate action for the allegation. In this particular case of Hernandez, Hernandez's parents argue that they do indeed have a Biven claim.
Their main reason for this is that the case that involves national security in the United States or even foreign affairs, Biven itself can be used under the fourth amendment. The main reason for this is that it has to be a US citizen and not by a foreigner for the search and arrest inside the USA and not outside the USA (Schwartz, Bernard). The parents' further note that their case does not implicate the national security nor the foreign affairs, therefore, it only involves the question of whether Mesa did or did not use excessive force on their boy. Thus, without a Biven remedy, there is no any other remedy, and without any remedy then there is no any judicial check on executive issues like their case.
On the part of the government, they argue that from what Biven's claim stands for, the Hernandez parents do not have a valid Biven's claim. They further ask the court not to use Biven's claims based on injuries incurred on a foreign national and not a US citizen in a foreign country (Tushnet, Mark V). Lastly, the government alleges that using a Biven claim, in this case, is not a job of the court but the job of the congress and the congress has the right to create statutory remedies for harms outside the United States.
In the Hernandez V. Mesa case, it is important to note that after failing to obtain justice, the parents decided to take the matter to the Supreme Court where their lawyer tried to argue that in the case, the US Constitution should come to play (Schwartz, Bernard). Despite all this, their lawyer was unprepared thus was not able to answer unpredictable questions posed to him by the court leading to the opening of the Pandora box. The following resulted in the rise of so many questions of how liable are the drone strikes by the USA to other foreign countries which are entirely a different issue from the case that is on the stand.
Another aspect that is important is that this case of Hernandez's killing did bring a bit of media attention at that time. The main reason for the media attention is because of the compelling facts of a border officer, Mesa shooting unarmed civilian who was not an American citizen without any justification of the shooting.
Furthermore, the government did initially false facts that Hernandez was unarmed and that he posed no threat to the border officer. Another reason for the media attention was because of increased violence by US officers on the Mexican border, and these officers are not accountable for their actions....
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