3 votes

Alien Shot By Border Patrol Appeal: Hernandez vs. U.S.

Text of Appeal in the 5th Circuit Court of Appeals; No. 11-50792
http://www.ca5.uscourts.gov/opinions%5Cpub%5C12/12-50217-CV0...

The dismissal of a federal tort claim against the United States and a claim against the United States under the Alien Tort Statute were affirmed. The United States can not be sued due to sovereign immunity in this case. The only part of the lower decision reversed was qualified immunity for the border patrol agent individually and the personal Bivens action. The Fourth Amendment claim was upheld as an invalid basis to reverse and the reversal in part hinges entirely upon a Fifth Amendment extended protection. Here are some relevant excerpts to that reversal:

"The Court ultimately determined that all of these cases shared a common thread: “the idea that questions of extraterritoriality turn on objective factors and practical concerns, not formalism.” Id. at 7 64. Based on these considerations, the Court concluded that at least three factors were relevant in determining the reach of the Suspension Clause:

(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.

...

In other words, our inquiry is not whether a constitutional principle can be applied abroad; it is whether it should.

...

The relevant practical obstacles include the consequences for U.S. actions abroad, the substantive rules that would govern the claim, and the likelihood that a favorable ruling would lead to friction with another country’s government.

...

Not all constitutional provisions will have equal extraterritorial application, if any. Some contain geographical references, but others do not.

...

Accordingly, as with any case of constitutional interpretation, extraterritoriality determinations require an analysis of the operation, text, and history of the specific constitutional provision involved.

...

We hold that, under the circumstances presented here—an alleged seizure occurring outside our border and involving a foreign national—the Fourth Amendment does not apply

...

The Appellants’ Fifth Amendment claim is not constrained by prior precedent on extraterritoriality, unlike the claim under the Fourth Amendment.

...

Whereas the Fourth Amendment applies only to “the people,” a term
of art, the Fifth Amendment applies by its express terms to “any
person.” Id. Therefore, our court has concluded that “[e]xcludable
aliens are not non-persons.”

...

Hernandez was a civilian killed outside an occupied zone or theater
of war. Thus, while Hernandez’s citizenship weighs against extraterritorial application, his status does not.

...

Mexican government requests that U.S. government actors are held
accountable in U.S. courts for actions on Mexican territory.

...

the Fifth Amendment protects against arbitrary conduct that shocks the conscience.

...

Significantly, recognizing extraterritorial application of the Fifth
Amendment for conscience-shocking conduct would not force agents to
change their conduct to conform to a newly articulated standard. We
have already recognized that aliens inside our borders, even those found to be excludable, are entitled "to be free of gross physical abuse at the hands of state or federal officials.”

...

We therefore hold that a noncitizen injured outside the United States as a result of arbitrary official conduct by a law enforcement officer located in the United States may invoke the protections provided by the Fifth Amendment. Because the United States has not waived sovereign immunity for any of the claims asserted against it, we AFFIRM the judgment in favor of the United States. Similarly, we AFFIRM the judgment in favor of the supervisors because the Appellants have failed to establish that either supervisor was personally responsible for the alleged constitutional violations. But because we hold that the Appellants can assert a Fifth Amendment claim against Agent Mesa and that they have alleged sufficient facts to overcome qualified immunity, we REVERSE the judgment in favor of Agent Mesa and REMAND for further proceedings consistent with this opinion."

FYI: The global war on terror and notion of fighting terrorists anytime at anyplace would easily overcome or challenge some of the reasoning provided here to deny suit.

As always, link to actual text provided so you may read the opinion for your dam self, do your own dam thinking, and form your own dam conclusions.



Trending on the Web