Justices Struggle With Constitutional On/Off Switch

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By Kimberly Strawbridge Robinson

The U.S. Supreme Court struggled with where to draw the line on the U.S. Constitution’s protections during oral argument Feb. 21 ( Hernández v. Mesa , U.S., No. 15-118 , argued 2/21/17 ).

The answer is obvious, a lawyer for the federal government told the justices today: The line is the U.S. border.

But at least one previous Supreme Court case suggests that the reach could be broader, Justice Stephen G. Breyer said.

Here, the court is considering whether the Fourth Amendment’s protections against illegal seizures apply to a Mexican teen who was fatally shot in a cross-border shooting by a U.S. boarder patrol agent.

The case seems to involve a jurisdictional “no-man’s land,” Justice Elena Kagan said.

But the case is about applying U.S. law to a U.S. border patrol agent acting in the U.S. This has U.S. jurisdiction written all over it, Justice Ruth Bader Ginsburg said.

Even if the teen’s family, which wants to sue the border patrol agent in federal court, can convince the justices that the Fourth Amendment should apply to their deceased son, they’ll have other significant hurdles before they can claim victory.

In particular, they also need to convince the justices that the family can sue the federal agent. As Justice Anthony M. Kennedy pointed out, the Supreme Court hasn’t expanded the kinds of violations for which federal officials can be held accountable since the 1980s.

A split decision from the eight-member court would leave in place a lower court ruling prohibiting the family’s case from going forward.

Tailored Standard

The family will have to first convince the justices that the Fourth Amendment applies here, even though the teen was shot while on the Mexican side of the border.

Their attorney, Robert C. Hilliard, of Hilliard Muñoz Gonzales LLP, Corpus Christi, Texas, told the justices that it should apply here because the 15-year-old was barely on Mexican soil and was nonthreatening and unarmed.

He then listed a five-factor test that should govern when constitutional protections apply extraterritorially. Those included when the U.S. official’s conduct occurred in the U.S., when the official isn’t a military officer, and when the victim is a civilian victim.

The test surprisingly fits the facts of this case, Chief Justice John G. Roberts Jr. quipped.

The court, however, can’t just make up a standard for this case, Breyer said. We have to come up with a standard that will guide lower courts in other cases too, he said.

Several justices seemed irritated with Hilliard’s inability to explain why those particular factors mattered.

For example, why shouldn’t the Fourth Amendment protect individuals in other countries from U.S. drone attacks by military officers, Roberts asked.

Cross-border shootings of unarmed Mexicans by U.S. border patrol agents are an ongoing problem, Hilliard said several times.

So as a practical matter, these factors are often present, Kagan said. But is there anything else that makes these confluence of factors different from others, she asked.

Hilliard didn’t seem to have an answer that satisfied the justices.

No-Man’s Land

If the problem is a line-drawing one, then the U.S. and Mexican governments have drawn the line, Edwin S. Kneedler, of the Department of Justice, Washington, told the justices. That line is the border, he said.

But Boumediene v. Bush, 553 U.S. 723 (2008) made clear that the Constitution can apply outside of the U.S. to non-U.S. citizens, Breyer said.

In Boumediene, the court allowed the Constitution’s protections of the right to habeas corpus—the right to challenge your detention in court—to apply to foreign detainees at the military prison in Guantanamo Bay, Cuba. There, the court took a functional approach to the reach of the U.S. Constitution, saying that “questions of extraterritoriality turn on objective factors and practical concerns, not formalism.”

Here, the area surrounding the U.S.-Mexico border is sort of a “liminal area,” in that it’s neither one thing or the other, Kagan said. It’s very different from most areas where we know clearly who has jurisdiction, she said.

Mexico doesn’t seem to have jurisdiction here because there’s nothing their courts can do to redress the U.S. border patrol agent’s behavior, Hilliard said. The U.S. government refused Mexico’s request to extradite the border patrol agent to stand trial for murder, Kneedler noted.

But having to decide the reach of the Constitution on an ad hoc basis would plunge the lower courts into a sea of confusion, Randolph J. Ortega, of Ortega, McGlashan, Hicks & Perez PLLC, El Paso, Texas, arguing for the border patrol agent, told the justices.

Having the border as the bright line rule would mean that the Fourth Amendment would protect a Mexican teen shot on U.S. soil but not one shot a few yards away on Mexican soil, Ginsburg said. That doesn’t make a whole lot of sense, she said.

In the Heartland

Even if the justices agree that the Fourth Amendment applies, the family still has to convince the justices that they should be allowed to sue for the constitutional violation.

The Supreme Court said that individuals may sue federal officials for such violations in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

But the Supreme Court hasn’t expanded the kinds of violations for which Bivens claims can be made since the 1980s, Kennedy said.

It would be extraordinary to do so here because this case implicates foreign affairs, an area typically left to the political branches of government, Kennedy said.

Kagan, however, didn’t think of it as an extension of Bivens. Bivens itself was about whether federal officials could be sued for Fourth Amendment violations, she said. This is the “heartland” of Bivens, she said.

Getting to Five

Finally, the family will also have to convince the justices that the border patrol agent isn’t entitled to immunity, like most federal officials are. Roberts, a potential swing vote on that question, indicated that he didn’t think immunity was available here.

It’s not clear the justices will get that far.

The court is still shorthanded from Justice Antonin Scalia’s passing last year.

The family needs five of those eight votes on at least one of the two previous issues to get to the immunity question. It wasn’t obvious from oral argument that the family could get those votes.

Listen to a breakdown of the arguments in Hernandez v. Mesa at http://src.bna.com/mkh.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

For More Information

Full text at http://src.bna.com/mmv.

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