Jesus Hernandez v. Unknown Named Agents, et
785 F.3d 117
5th Cir.2015Background
- Sergio Hernández, a 15-year-old Mexican national on Mexican soil, was fatally shot by a U.S. Border Patrol agent (Mesa) who was standing on U.S. soil firing across the border.
- Plaintiffs sued alleging excessive, deadly force in violation of the Fourth Amendment and a Fifth Amendment substantive-due-process right; the United States was substituted as defendant under the Westfall Act for the federal-employee claim and plaintiffs also asserted an Alien Tort Statute (ATS) claim against the United States.
- The panel opinion dismissed many claims; the en banc Fifth Circuit reinstated parts of the panel opinion and reheard the question of qualified immunity for Agent Mesa on the Fifth Amendment claim.
- The en banc court unanimously held plaintiffs failed to plead a Fourth Amendment violation (applying United States v. Verdugo-Urquidez) and that any asserted Fifth Amendment right was not clearly established in 2010; therefore Agent Mesa is entitled to qualified immunity and the dismissal is affirmed.
- Several concurring opinions disagree on whether the Fifth Amendment can reach these facts (some would decide no constitutional violation at all), and there is debate about whether ATS-based claims waive U.S. sovereign immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fourth Amendment protects an alien shot outside U.S. soil | Hernández argues excessive force claim can proceed under Fourth Amendment | Mesa/US argue Fourth Amendment does not apply extraterritorially to aliens with no substantial U.S. connection (Verdugo) | Court: Fourth Amendment inapplicable—Verdugo forecloses claim |
| Whether Fifth Amendment substantive due process protects noncitizen injured abroad by U.S. agent | Plaintiffs contend the Fifth Amendment protects against arbitrary deadly force by U.S. agents even when injury occurs in Mexico | Government contends Eisentrager/Verdugo and Boumediene limits mean no Fifth Amendment protection here; alternatively, right not clearly established | Court: divided on violation, but unanimous that any Fifth Amendment right was not clearly established in 2010—qualified immunity affirmed |
| Qualified-immunity standard: clearly established law at time of incident | Plaintiffs: general excessive-force principles clearly put Mesa on notice | Mesa: no controlling precedent placed the specific extraterritorial Fifth-Amendment right beyond debate | Court: no case law in 2010 clearly warned Mesa—qualified immunity applies |
| Whether ATS permits suit against the United States (sovereign immunity) | Plaintiffs: ATS (and jus cogens) supports suit against U.S. for extrajudicial killing | Government: ATS is jurisdictional only and does not waive U.S. sovereign immunity; waiver must be unequivocal | Concurring opinions: majority and other circuits reject ATS waiver of U.S. sovereign immunity; en banc opinion rejects ATS claim against the U.S. |
Key Cases Cited
- Pearson v. Callahan, 555 U.S. 223 (2009) (governing two-step qualified-immunity analysis; courts may decide order of prongs)
- Ashcroft v. al-Kidd, 563 U.S. 731 (2011) (law must be defined with sufficient specificity to be clearly established)
- Brosseau v. Haugen, 543 U.S. 194 (2004) (officer is entitled to qualified immunity unless unlawfulness is apparent in light of pre-existing law)
- United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (Fourth Amendment does not apply to aliens abroad lacking substantial voluntary connection to the U.S.)
- Boumediene v. Bush, 553 U.S. 723 (2008) (functional factors for extraterritorial application of the Suspension Clause; court emphasized practical, objective factors over formal sovereignty)
- Johnson v. Eisentrager, 339 U.S. 763 (1950) (generally limited extraterritorial application of certain constitutional protections to aliens held outside U.S. sovereignty)
- Graham v. Connor, 490 U.S. 386 (1989) (excessive-force claims arising from seizures are analyzed under the Fourth Amendment reasonableness standard)
- Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (ATS is jurisdictional and lower courts may recognize a narrow set of international-law-based causes of action; courts should exercise restraint)