Court of Appeals Applies Fifth Amendment, But Not Fourth Amendment, to Killing in Mexico Caused by Shots Fired from the U.S.

The World in U.S. Courts: Summer 2014 - Alien Tort Statute (ATS)/Torture Victims Protection Act (TVPA)/Victims of Trafficking and Violence Protection Act (VTVPA)/Foreign Sovereign Immunity Act (FSIA)

Hernandez v. United States, U.S. Court of Appeals for the Fifth Circuit, June 30, 2014

A Mexican citizen standing in Mexico was shot to death by U.S. border patrol agents who were standing in the U.S. Hernandez, the deceased’s legal representative, sued the U.S. and the agents on tort theories and for violation of the deceased’s constitutional rights.

The tort claims, which could only be brought against the U.S. Government, were dismissed because U.S. law (the Federal Tort Claims Act) specifically precludes liability where the injury occurs outside the U.S.

ATS claims against the U.S. were dismissed on grounds of sovereign immunity—that the U.S. can only be sued by consent, and that the ATS is not a waiver of sovereign immunity that could be taken as having given such consent.

The Court of Appeals then turned to so-called “Bivens” claims for damages, which can be brought against U.S. federal employees for alleged violations of constitutional rights. The threshold question was whether the constitutional provisions at issue applied to actions in the U.S. having an effect in Mexico. The Court of Appeals concluded that the answer required consideration of three prudential "objective factors and practical concerns": “(1) the citizenship and status of the claimant, (2) the nature of the location where the constitutional violation occurred, and (3) the practical obstacles inherent in enforcing the claimed right.”

Applying these factors and prior precedent, the Court of Appeals first concluded that the U.S. Constitution’s Fourth Amendment protection against unreasonable searches and seizures did not apply because the deceased did not have “sufficient voluntary connections” with the U.S.

The Court of Appeals then addressed the claim that the agents used “excessive force” and that this conduct violated the Fifth Amendment’s prohibition against the taking of life without due process, even as to a Mexican citizen who was in Mexico at the time of his death. The Court of Appeals noted that precedent allowed for a greater extraterritorial applicability of the Fifth Amendment than the Fourth Amendment. Reviewing the “objective factors” cited above, it concluded that those favoring the applicability of the Fifth Amendment (notably, that the U.S. exercised control over the border region and that the conduct alleged involved a high degree of culpability) outweighed those suggesting no constitutional protection (the fact that the plaintiff was not a U.S. citizen).

With the applicability of the constitutional provision established, the Court of Appeals concluded that it was appropriate to extend a Bivens remedy to the facts, although such extensions beyond prior precedent are generally disfavored. A claim against the agent was allowed to proceed to trial; one against his supervisors was not because they were not shown to have had the necessary personal involvement in the actions in question.

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