5th Circuit holds 5th Amendment applies to death caused by Border Patrol Agent even though it occurred in Mexico

Hernandez v. United States No. 11-50792 c/w Nos. 12-50217 & 12-50301(5th Cir. June 30, 2014).

This is a Fourth and Fifth Amendment U.S. Constitutional case where the 5th Circuit affirmed the dismissal of the United States and supervisors but reversed as to the qualified immunity of a Border Patrol agent after he shot and killed a fifteen-year-old boy.

Guereca was a fifteen-year-old boy who was on Mexican soil, playing a game with friends where he would run up to the fence separating Mexico and the U.S.  Border Patrol Agent Mesa came upon the game and after the boys attempted to evade his approach by ducking behind a pillar he fired at least two shots, one of which killed Guereca.  Agent Mesa was standing on U.S. soil and Guereca was standing on Mexico soil at the time.  Guereca’s family brought suit against Agent Mesa, the U.S. and several supervisors both under the Federal Tort Claims Act and under the U.S. Constitution. The trial court granted the defendants’ motion to dismiss and the family appealed.

The Fifth Circuit first addressed the Federal Tort Claims Act and Alien Tort Statute claims against the U.S. and held the U.S. did not waive its sovereign immunity for claims where the injury occurred in a foreign country. The court then analyzed Agent Mesa’s claim of qualified immunity and went into a highly detailed analysis of whether constitutional protections could apply to non-citizens outside the territorial limits of the U.S.  The court determined that the Plaintiff’s Fourth Amendment claim against unreasonable search and seizure could not apply in this situation because Guereca was outside the territorial limits and had little to no connections with the U.S.   However, the family’s claims could be brought under the Fifth Amendment since the text of the Fifth Amendment states it applies to “any person.” The court was careful to explain that whether each amendment could apply is analyzed on a case-by-case/totality of circumstances basis and not a categorical determination. The dissent held the majority’s interpretation was an improper expansion of the Fifth Amendment.  This 46 page opinion goes into great detail and analysis of practical, political, even war and temporary occupation situations in explaining when a constitutional amendment can apply abroad. If you end up with a constitutional challenge where part or all of the transaction occurred outside a U.S. border, this case would be helpful.  In the end, the court held Agent Mesa was not entitled to qualified immunity and the family could proceed with its Fifth Amendment claims against him only. The supervisors were dismissed since they had no personal involvement in the events surrounding Guereca’s death.

If you would like to read this opinion click here. Panel: Justices DeMOSS, DENNIS, and PRADO.  Opinion by Judge Prado. Attorney for Plaintiff is listed as Steve D. Shadowen.  The attorney for the U.S. and Agend Mesa is listed as Henry Charles Whitaker.

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