The Supreme Court on Tuesday will take up a case to decide whether constitutional rights apply to foreigners with no voluntary connection to the United States. The critical question of law is: Can a U.S. law enforcement officer be sued in American courts for the death of a foreigner outside the United States?
American courts for two centuries have found the answer to be an emphatic “no.” The Supreme Court’s agreeing to hear Hernández v. Mesa casts doubt on that long-held understanding of the law.
“That has been under a lot of pressure and challenge recently,” asserts Fordham University School of Law’s Professor Andrew Kent.
The Supreme Court signaled the possibility of revision with a 2008 ruling that prisoners at the Guantanamo Bay, Cuba, detention facility had a right to petition U.S. courts despite the facility being on foreign soil and the detainees being foreigners who had never been in the United States.
A decision in favor of the plaintiffs would make it more difficult for U.S. Border Patrol agents to do their jobs. Depending on the expansiveness of the language in the opinion, legal scholars speculate that the decision could impact immigration more generally.
In the case of Hernandez vs. Mesa, a 15-year-old, twice-arrested smuggler was shot and killed in Mexico just yards across the U.S. border by a Border Patrol officer who was standing on American soil.
A District Court judge dismissed the initial lawsuit, and the 5th U.S. Circuit Court of Appeals in New Orleans upheld the decision.
Attorneys for the Hernández family argue border officers exercise a level of control along the border that renders it effectively U.S. territory. The government contends that even if constitutional protection did extend to Hernández, Border Patrol officer Jesus Mesa Jr. is entitled to immunity because he was acting in his official capacity as a law enforcement officer.
Brandon Judd, president of the National Border Patrol Council, expressed confidence in the appellate court ruling. “It seems pretty straightforward and pretty sound. It’s the right decision. I don’t see how agents … could be held civilly liable for something that didn’t happen in our country.”
Judd added that the Supreme Court upholding the lower court decision would “let our officers know they can continue to do our jobs without fear of reprisal.”
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