Civil Rights: Hernández v. Mesa

Preview Issue 5, Vol. 44

By Steven D. Schwinn

Published February 2017

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Can the Parents of a Mexican Youth Sue a U.S. Border Officer in Federal Court for Fourth and Fifth Amendment Violations After the Officer Shot and Killed the Youth While the Officer Was on the U.S. Side of the Border, but the Youth Was on the Mexican Side?


Sergio Hernández, a 15-year-old Mexican national, was playing with his friends in the concrete culvert that separates El Paso, Texas, from Juarez, Mexico. A U.S. border officer, Jesus Mesa, arrived on the scene and caught one of Hernández’s friends. Hernández, who was unarmed and not trying to gain entry into the United States, ran behind a bridge pillar on the Mexican side of the culvert. Mesa shot Hernández in the head as he peered out from behind the pillar, and Hernández died on the spot. Hernández’s parents sued Mesa for violating Hernández’s rights under the Fourth and Fifth Amendments.


The Supreme Court has used two different approaches to determine whether constitutional rights apply to a non-U.S. citizen outside of the United States —a “formalist” approach (that looks simply to the location of the violation) and a “functional” approach (that considers the totality of the circumstances). Moreover, an officer is entitled to qualified immunity if the officer did not violate a clearly established constitutional right. Finally, the Court will hear an implied cause of action for constitutional violations pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), so long as the action falls within a familiar context recognized by the Court, and so long as there are no special factors that counsel against such an implied action.


What approach should the courts use to determine whether the Fourth Amendment applies to a U.S. border officer’s cross-border shooting of an unarmed Mexican citizen in an area patrolled by the United States?

Is the border officer entitled to qualified immunity for the shooting?

Can the parents of the victim bring a claim under the implied cause of action created by Bivens?


In the summer of 2010, Sergio Hernández, a 15-year-old Mexican national, was playing with three friends in the concrete culvert that separates El Paso, Texas, from Juarez, Mexico. On the El Paso side, the culvert is a banked incline that leads to an 18-foot fence; on the Juarez side, the culvert banks to a wall topped with a guardrail. A railroad bridge, the Paso Del Norte Bridge, runs over the culvert and connects the United States with Mexico. (You can see a picture at

Hernández and his friends were playing a game in which they dared each other to run up the culvert’s bank on the El Paso side, touch the U.S. fence, and then run back down to the bottom. The children were playing in plain sight; they were not trying to smuggle themselves or goods into the United States, and they were unarmed.

As the boys were playing, a U.S. border guard, Jesus Mesa, who was patrolling the border by bicycle, caught one of them. The other two boys, including Hernández, ran back to a pillar beneath the railroad bridge on the Mexican side of the culvert. As Hernández peered out from behind the pillar, Mesa, who remained on the U.S. side of the culvert, drew his fi rearm and shot Hernández in the head. Neither Mesa nor any other Border Patrol agents who arrived on the scene offered any assistance to Hernández; instead, they got back on their bikes and left. Hernández died where he was shot, on the Mexican side of the culvert.

Federal authorities initially claimed that Mesa shot Hernández in self-defense. They said that Mesa “responded to a group of suspected illegal aliens being smuggled into the U.S. from Mexico,” and that Hernández “began to throw rocks” at Mesa from across the border. Cell phone videos later revealed that this account was false—that, in fact, Hernández did not throw rocks at Mesa, that “Mesa wasn’t surrounded” by the boys when he fired, and that Mesa shot Hernández as he stuck his head out from behind the pillar.

U.S. and Mexican prosecutors both investigated the shooting, but Mesa was not prosecuted. U.S. officials determined that they lacked jurisdiction, because Hernández was outside the United States. Mexican officials charged Mesa, but the United States refused to extradite him.

Six months after the shooting, Hernández’s parents sued Mesa in federal court, alleging that Mesa violated the Fourth and Fifth Amendments. The district court dismissed the Fourth Amendment claim, ruling that the Fourth Amendment’s restrictions on the use of deadly force do not apply outside the United States. The court dismissed the Fifth Amendment claim, holding that any Fifth Amendment claim for excessive force could be considered under the Fourth Amendment only.

On appeal, the en banc United States Court of Appeals for the Fifth Circuit ruled for Mesa, but on different and additional grounds. (A three-judge panel earlier ruled in part for Mesa and in part for Hernández.) The en banc court held that Mesa was entitled to qualified immunity on the Fifth Amendment claim, and that the Fourth Amendment did not apply.

Hernández appealed to the United States Supreme Court on these two issues. Then Mexico filed a brief in support of Hernández’s petition, and the Court added a third issue: “Whether the claim in this case may be asserted under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971),” which authorizes, in certain circumstances, an individual cause of action against federal officers for a violation of constitutional rights.


There are three separate issues in this case. Let’s take them one at a time.

Does the Fourth Amendment Apply Outside of the United States?

The Supreme Court has taken two different approaches to the extraterritorial application of constitutional rights. First, under the “formalist” approach, a four-justice plurality of the Court has said that the Fourth Amendment categorically does not protect non-citizens from unreasonable searches and seizures by government agents outside of the United States. United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). The approach is “formalist,” because it draws a strict, formal line between government searches and seizures inside the United States (which are protected by the Fourth Amendment) and government searches and seizures outside the United States (which are not).

Second, under the “functional” approach, the Court has ruled that the Suspension Clause (protecting the right to habeas corpus) may apply outside the United States, depending on “objective factors and practical concerns, not formalism.” Boumediene v. Bush, 553 U.S. 723 (2008). This approach is “functional,” because it depends on case-specific, totality-of-the-circumstances, factual considerations that go to the practical application of the Constitution, not a rigid formula.

This case tests which approach applies—the formalist approach or the functional one—and, if the functional approach applies, whether the Fourth Amendment actually applies here.

Hernández’s parents argue that the functional approach applies. They say that Justice Kennedy’s concurrence in Verdugo-Urquidez explicitly rejected the formalist approach, and that the Court then validated Justice Kennedy’s rejection of formalism in Boumediene. (The parents also say that Verdugo-Urquidez dealt with the Fourth Amendment’s warrant requirement, not, as here, the Fourth Amendment’s prohibition on the unjustified use of deadly force. And so according to Hernández’s parents, Verdugo-Urquidez is distinguishable on the facts.) The parents contend that under a functional approach, the Fourth Amendment applies here. They claim that Mesa shot Hernández very close to the border; that Hernández was “an unarmed civilian and a member of an intertwined, binational border community”; and that the government, through the president, exercises control over the actions of border agents, and the agents, in turn, exercise control over the border. The parents also say that applying the Fourth Amendment would help, not hurt, relations with Mexico, and that it would avoid anomalies that would result if the Fourth Amendment didn’t apply here.

In response, the government argues in favor of a formal approach. The government says that Justice Kennedy joined the Court’s conclusion in Verdugo-Urquidez, and that nothing in Boumediene undermines the Court’s formal approach in that case. (The government claims that Boumediene is distinguishable: it dealt with the extraterritorial application of the right to habeas corpus in a place, Guantanamo Bay, where the government exercises de facto sovereignty and near complete control.) The government contends that under the formal approach, the Fourth Amendment simply does not apply here.

Is Mesa Entitled to Qualified Immunity?

Under the “qualified immunity” doctrine, an officer is immune from liability for a violation of constitutional rights if the officer’s conduct (1) is not unconstitutional or (2) does not violate a clearly established constitutional right of which a reasonable person would have known. (“Clearly established” in this context could mean, for example, that the Supreme Court has ruled definitively on the right, as applied in a particular kind of situation.) The courts can analyze these two prongs in either order. This means that a court could rule that a right in a particular case is not “clearly established,” and thus obviate the need to determine whether the officer’s action was objectively constitutional in the first place.

Here, the parties wrangle over whether Mesa enjoys qualified immunity from Hernández’s parents’ Fifth Amendment claim that Mesa violated Hernández’s right to substantive due process by using excessive and deadly force against him.

Hernández’s parents argue that Mesa is not entitled to qualified immunity. They say that Mesa’s qualified immunity turns only on Hernández’s status as a Mexican citizen with no connection to, or presence in, the United States (because the extraterritorial application of the Fifth Amendment turns on these factors). But they contend that Mesa did not know that Hernández was a Mexican citizen with no connection to, or presence in, the United States at the time of the shooting—the relevant time to judge Mesa’s knowledge of the situation (and not later, when Mesa learned differently). They contend that Mesa therefore cannot claim that his conduct was not unconstitutional and did not violate a clearly established constitutional right. Given what Mesa didn’t know at the time of the shooting, they say that “no reasonable officer in Mesa’s shoes would have thought it lawful to open fire on an unarmed civilian posing no threat to anyone.”

The government argues that Mesa is entitled to qualified immunity. It agrees with Hernández’s parents that the Court should judge Mesa’s knowledge at the time of the shooting. But it says that the Court should not assume that Mesa knew that Hernández was a U.S. citizen, when he didn’t. The government claims that the right question is whether a reasonable officer in Mesa’s position would have known that the shooting violated the Fifth Amendment, where he did not know Hernández’s nationality (but had no reason to believe that he was a U.S. citizen). The government says that the answer is “no”: “no case law addresses the application of the Fifth Amendment to uses of force against persons of unknown nationality outside the United States, and … it is not clearly established that the Fifth Amendment (rather than the Fourth Amendment) has any application to such uses of force, regardless of the nationality of the affected individual.”

Do Hernández’s Parents Have a Cause of Action Under Bivens?

Civil rights in the U.S. Constitution are not self-executing, and there is no statutory basis for individuals to sue federal officers for violating their civil rights. But the Supreme Court recognized an implied right of action against federal officials in Bivens. Bivens offers only a very limited remedy, however. It applies only in certain contexts, and the Court has refused to extend a Bivens claim to new contexts when “special factors counsel hesitation”—that is, when circumstances suggest that Congress, and not the courts, should decide whether an action is appropriate, for example, in cases involving national security or foreign affairs. (Bivens itself involved a Fourth Amendment claim, but one by a U.S. citizen, not a foreign national, for a search and arrest within the United States, and not overseas.)

Hernández’s parents argue that they have a valid Bivens claim. They say that Bivens created an implied cause of action “in part to ensure a remedy for egregious Fourth Amendment violations like the one alleged here.” They also say that no special factors counsel against a Bivens remedy: this case implicates neither national security nor international relations; instead, it involves only the question whether Mesa used excessive force. They contend that without a Bivens remedy, they would have no remedy at all. And without a remedy, the parents claim that there is no judicial check on Executive actions like this.

The government argues that Hernández’s parents do not have a valid Bivens claim. It says that the Court should not extend Bivens to a claim based on injuries suffered by a foreign national in a foreign country, because such a claim necessarily implicates foreign affairs. The government contends that creating this kind of claim is a job for Congress, not the Court, and that Congress has been loath to create statutory remedies for harms overseas.


Hernández’s killing garnered quite a bit of media attention at the time. This was largely because of the compelling facts—a border officer shooting an unarmed Mexican youth apparently without justification. It was also in part because of the cell phone videos that surfaced. These showed that the government initially falsely reported the facts—and that Hernández was, indeed, unarmed, that he posed no threat to Mesa, and that he was not trying to cross the border.

But the media attention also came because of the increasing violence by U.S. officers on the Mexican border, with little or no accountability. As Hernández’s parents point out, Border Patrol agents have used deadly force in a number of “highly questionable” situations in recent years, and they “have done so with impunity.” Agents killed “at least 42 people” from 2005 to 2013, 38 of these on or near the Mexican border. The rate has increased since 2009. Still, “[i]n none of the 42 deaths is any agent or officer publicly known to have faced consequences… .” An internal study of 67 shootings from 2010 to 2012 revealed that the Border Patrol disciplined only two officers. Both received an oral reprimand.

Within this context, Hernández v. Mesa is about a victim’s family’s ability to get a remedy for constitutional violations. It’s also about holding a government officer (and the government itself) accountable for these violations. If the Court affirms the lower court, or if it rules that Hernández’s parents do not have a valid Bivens claim, then the parents will be left without a constitutional remedy, and they will not hold Mesa to account, at least through the courts. (Even if the Court rules in favor of the parents, however, and allows the case to move forward, this would only give the parents a chance to make their case on the merits in the lower courts.)

On the other hand, this case is also about the limits of constitutional rights and giving government officers sufficient discretion to do their jobs. The Fourth and Fifth Amendments have some limits, to be sure. So does their enforceability in federal courts. And the doctrine of qualified immunity is designed to help ensure that federal officers can do their jobs without constant fear of litigation. The Court’s ruling could help set the limits of Fourth and Fifth Amendment rights (at least as to their extraterritorial application, if any), their enforceability, and qualified immunity for the future.

Finally, we cannot ignore the larger political context. This case comes to the Court soon after President Trump issued his executive order on immigration, and during the ongoing disputes between the Trump Administration and Mexico over unauthorized immigration by way of our southern border and NAFTA. While this case does not necessarily touch directly on any of these, it certainly could add fuel to these fires, however the Court rules.