Jesus Hernandez v. USA

Hernandez, and REMAND for proceedings Individually CATE Jesus C. and as opinion. surviving consistent with this Sergio father of Adrian Guereca,

Hernandez and as Succes Sergio sor-in-Interest to the Estate of Guereca; Adrian Hernandez Maria Guadalupe Guereca Bentacour, Indi vidually surviving and as the mother Sergio Guereca, Adrian Hernandez and as Successor-in-Interest to the Sergio Estate of Adrian Hernandez Guereca, Plaintiffs-Appellants HERNANDEZ, Individually Jesus C. surviving Sergio and as the father of v. Guereca, Adrian Hernandez and as Successor-in-Interest to the Estate of Cordero; Ramiro Manjarrez, Victor M. Sergio Guereca; Adrian Hernandez Jr., Defendants-Appellees. Guadalupe Bentacour, Maria Guereca 11-50792, 12-50217, Nos. 12-50301. Individually surviving and as Sergio mother of Adrian Hernandez United States Court of Appeals, Guereca, and as Successor-in-Interest Fifth Circuit. Sergio to the Estate of Adrian Her Guereca, Plaintiffs-Appellants nandez June

v. America;

UNITED STATES United Department

States of Homeland Secu

rity; United States Bureau of Cus Protection;

toms and Border Patrol;

States Border United States

Immigration and Customs Enforce Agency;

ment Depart United States Justice,

ment Defendants-Appellees Hernandez, Individually

Jesus C. and as surviving Sergio father of Adrian Guereca,

Hernandez and as Succes Sergio

sor-in-Interest Estate of Guereca;

Adrian Hernandez Maria

Guadalupe Bentacour, Guereca Indi

vidually surviving and as the mother Sergio Guereca, Adrian Hernandez

and as Successor-in-Interest to the Sergio

Estate of Adrian Hernandez

Guereca, Plaintiffs-Appellants Mesa, Jr., Defendant-Appellee

Jesus Hilliard, Rudy Gon- Esq.,

Robert C. zales, Jr., Reilly, Mu- Hilliard Marion M. TX, L.L.P., Christi, Gonzales, Corpus noz Galindo, Attorney, Hous- Miguel Cristobal Shadowen, TX, Esq., ton, Hilliard Steve D. PA, Shadowen, L.L.C., Mechanicsburg, & Plaintiffs-Appellants. for Whitaker, Louise Helen Henry Charles Lenerz, Gilbert, Esq., Esq., Joseph Daniel Division, Justice, Civil Department of DC, Staff, Harold Washington, Appellate Brown, Jr., Assistant U.S. Esq., Edwin Office, An- Attorney’s San Attorney, U.S. tonio, TX, Defendants-Appellees. DeMOSS, DENNIS, and Before PRADO, Judges. Circuit PRADO, Judge: C. Circuit EDWARD foreign national’s This case involves protection attempt to invoke injury for an that occurred outside the parents, Hernandez’s Jesus C. Hernan- United States. United States Border Pa- dez and Maria Guadalupe Guereca Bentac- (“the Mesa, Agent trol Jesus our (“Agent Appellants”), sued, Jr. asserting Mesa”), States, standing in the United eleven against States, shot claims the United Sergio Agent Mesa, and killed Adrian Hernandez and unknown federal employ- (“Hernandez”) Guereca, citizen, a Mexican They brought ees. the first seven claims standing in Mexico. family Hernandez’s under the Federal Tort Claims Act sued, (“FTCA”) asserting a number of claims based on multiple allegations of States, patrol the United the border agent, tortious conduct.2 Their next two claims agent’s supervisors. and the For the fol- asserted that the United States and the reasons, lowing judg- we AFFIRM the unknown employees federal had violated ments in favor of the United States and Hernandez’s Fourth and Fifth Amendment supervisors, rights but we by knowingly REVERSE the adopting inadequate judgment in favor of the patrol procedures border regarding the use of deadly agent. force and failing adopt adequate

procedures regarding the use of reason- able in effecting force arrests. Their I. BACKGROUND tenth claim Agent asserted that Mesa was Appellants’ complaint sets forth the fol- liable under Bivens v. Six Unknown lowing allegations. factual On June Agents Named Federal Bureau Nar- 2010, Sergio Guereca, Adrian Hernandez cotics, national, fifteen-year-old Mexican was (1971), L.Ed.2d 619 for violating Hernan- gathered group with a of friends on the dez’s Fourth and Fifth Amendment rights Mexican side of a cement culvert that sep- through “excessive, the use deadly arates the United States and Mexico.1 Finally, force.” claim, for their eleventh Hernandez and his friends were playing a invoked the district court’s game that running involved up the incline jurisdiction under the Alien Tort Statute culvert, touching the barbed-wire (“ATS”), alleging that Hernandez “was fence separating Mexico and the United shot in contravention of international trea- States, running and then back down the ties, conventions and the Laws of Na- they incline. playing, As were tions.” Mesa, States Border Patrol Jesus Jr. arrived on the scene and detained one The United States moved to dismiss the friends, of it, Hernandez’s causing Hernandez claims against which all included claims to pillars retreat “beneath the except of the Paso against for the Bivens action Agent del Norte Bridge” in Mexico to matter, observe. Mesa. As a preliminary the district Mesa, Agent still standing in the United court determined that under the Westfall States, Act, then fired at § least two shots at 28 U.S.C. the United States Hernandez, one of which struck him in the only proper was the defendant for the face and killed him. common Agent law tort claims because 1. The culvert gent is located near the adopt policies Paso del failure to that would have Paso, Bridge Norte in El Texas. (6) protected rights, Hernandez’s the inten- adoption policies tional of that violated Her- Specifically, the FTCAclaims were based on (7) rights, nandez's and the intentional failure (1) (2) (3) battery, negligence, assault and adopt policies protected to that would have Agent deadly Mesa's use of excessive and rights. Hernandez’s force, (4) negligent adoption policies the (5) rights, negli- that violated Hernandez's the arguing immunity and qualified ing scope and in the course acting

Mesa was injured outside the Hernandez, alien not as an did Appellants The employment. his Fifth States, Fourth or determination, the court lacked and United this dispute district as the The protections. Amendment States the United substituted claims. See the claims those for and dismissed agreed court party-defendant 2679(b)(1) (establishing an FTCA court § the Specifically, Agent U.S.C. Mesa. against the States as United the against Verdugo-Urqui claim States v. on relied claim any tort based remedy for exclusive dez, 110 S.Ct. 494 U.S. employee government acts of on the (1990), that Hernan to hold L.Ed.2d his em- scope of and the course acting Amend Fourth invoke the could not dez grant- then court district The ployment). was an because he alien protection ment’s the dismiss, holding that ed the motion voluntary ties to the United no with sovereign waived not had United States v. Boumediene court found The States. the either under these claims immunity for Bush, FTCA or ATS. (2008), because inapplicable L.Ed.2d 41 the claims court dismissed nothing After the about “the said Boumediene States, Appellants against the United unrea against right Fourth Amendment four Bi- to add complaint amended their The court and seizures.” sonable searches supervi- Agent Mesa’s vens actions Fifth the Appellants’ dismissed then Luck, Cordero, Victor Scott sors—Ramiro claim, under Graham holding Amendment The Jr., Provost. and Carla Manjarrez, Connor, supervisors that these asserted Appellants (1989), that excessive 104 L.Ed.2d and Fifth Fourth violated Hernandez’s analyzed only under be force claims should tolerating and con- “by rights Amendment the Fourth Amendment. brutality and excessive pattern doning sought dismissal Finally, supervisors systemat- agents; Patrol by force Border on, summary judgment of, alternatively or adequately and failing properly ically against them. remaining Bivens action of brutal- investigate incidents monitor Appel- argued that supervisors in- officers discipline ity supervise allege a misconduct; adequately had creating an lants failed volved such liability Fourth or clearly from established agents violation shield environment to conduct; that, if and inade- even rights wrongful Fifth Amendment for their re- agents had, person- training officers and quately they supervisors were and restraint appropriate use vio- garding ally responsible weapons.” Additional- as responded of their firearms vol- Appellants lation. The supervi- alleged ly, Agent dismissing Agent Luck and untarily knowl- constructive sors “had actual granted then and/or The district court Provost. “posed Mesa’s conduct edge” Agent remaining de- summary judgment for the con- risk of pervasive and unreasonable [a] fendants, Agent Man- Cordero and response their injury” and that stitutional Appellants had holding that jarrez, as inadequate “so knowledge to such was were “that the Defendants failed to show au- or tacit indifference to show deliberate in 7 incident” the June personally involved practices.” alleged offensive thorization link “between was causal or that there and a acts omissions the Defendants’ thereafter, moved Agent Mesa Shortly rights.”3 The him, of Hernandez’s assert- violation against claims to dismiss the were entitled to invoke argument that the for the sake 3. The court assumed

257 Agent court noted that Cordero had not circumstances States, where the United if in supervised agents Agent position Mesa’s private person, would be liable to the years 2006-four “since the June 7 before in claimant accordance with the law of the Additionally, Agent Manjarrez incident.” place where the act or omission occurred.” 1346(b)(1). transferred to a § was different sector from 28 U.S.C. The FTCA “also “eight Mesa’s months before the limits its sovereign waiver of immunity in a 7 June incident.” The court found both of number of ways.” Sosa v. Alvarez-Ma chain, gaps these created “too remote a 692, 700, time 124 S.Ct. period to a genuine raise issue of (2004). material 159 L.Ed.2d 718 The relevant limi supervisors’] fact actions or [the omis- on tation the waiver immunity here is proximately sions Appellants’] [the caused exception FTCA “[a]ny for claim aris harm.”4 ing in a foreign country.” 28 U.S.C. 2680(k). § Appellants timely appealed

The each ad- judgment, verse consolidated we The Supreme analyzed Court scope appeals review.5 of the FTCA’s foreign country exception in There, Sosa. the DEA hired Mexican na- II. CLAIMS AGAINST THE tionals to seize a Mexican physician be- UNITED STATES lieved to have participated the interro- gation Sosa, and torture of agent. a DEA A. Federal Tort Claims Act 697-98, U.S. at 542 124 S.Ct. 2739. The begin with We the claims asserted physician was abducted from his house against States, the United specifically Mexico, motel, held in a overnight asserted those under the FTCA. The Paso, brought then to El where he was FTCA “is a limited waiver of sovereign by arrested federal officers. Id. at immunity, making the Federal Govern Upon 124 S.Ct. 2739. his return to Mexi- ment liable to the same private extent as a co, physician sued the United States party for certain torts employ of federal for false arrest under the FTCA. Id. The ees acting within the scope of their em Ninth Circuit held the United States liable Orleans, ployment.” United States v. under California law because DEA had 48 L.Ed.2d authority no physician’s to effect the arrest (1976). The accordingly gives FTCA and detention Mexico. Id. at jurisdiction federal courts over claims S.Ct. 2739. against the United “personal States for injury or death caused negligent or Supreme reversed, holding wrongful act or any employee omission of country FTCA’s foreign exception of the Government while acting within barred claim. id. at See of his office or scope employment, under 2739. The Court noted that some courts protections Fourth and Fifth jurisdiction Amendment We appeals over all three supervisors. their claims § under 28 Both the U.S.C. 1291. decision to grant a motion dismiss the decision to 4. The Appel- district court also denied the grant summary judgment are reviewed de request discovery to seek lants’ for the limited Stryker Corp., novo. Bass v. purpose uncovering the names of other (5th Cir.2012); Marine Servs. Inc. Buffalo supervised Agent individuals who had Mesa States, (5th v. United F.3d Cir. they could so file a amended fourth com- 2011). plaint naming Appel- the new defendants. argue lants do not appeal on that the court denying request. abused its discretion their Hernan Here, undisputed it is actions to similar had allowed appeals of he was when standing Mexico known as the was was dez what under proceed Nevertheless, argue doctrine,” provided Appellants the which shot. “headquarters country exception [would] in the injury foreign occurred that “the that Hernandez’s from suit for States United exempt Appellants the the Specifically, States. United occurring here which or acts omissions claim contend an and assert assault coun- in another effect operative have their and aimed gun has been cocked “once the (internal 701, 124 S.Ct. 2739 Id. at try.” it is not trigger, is on the finger the omitted). Court, The marks quotation strikes to until the bullet necessary to wait as inconsis- doctrine however, this viewed times, But at all relevant invoke assault.” foreign the of language plain the tent with Any standing in Mexico. Hernandez was Specifically, exception. See id. country based necessarily be claim will therefore “to conclude good reason found the Court country. foreign in a injury an suffered on ‘arising a claim understood Congress are barred these tort claims Accordingly, a claim for country’ to be foreign in a country exception under foreign by the foreign a coun- occurring in injury or harm Sosa.6 2789. When at S.Ct. try.” Id. prin- “the dominant passed, was the FTCA Alien Tort Statute B. analysis for tort cases ciple choice-of-law ap- generally courts delicti: was lex loci the final claim Unit The injury the place the where plied law Alien brought under ed States was 2739. at Id. occurred.” (“ATS”), § 1350. Tort Statute U.S.C. foreign injured in a Thus, plaintiffs district that “[t]he The ATS provides Ameri- choice in country, presumptive “the jurisdiction of original courts shall rule would the traditional courts under can only, a tort by an alien for any civil action law to deter- apply foreign have been nations law of violation committed in at liability.” Id. tortfeasor’s mine the States.” treaty of the United was the exact result This 124 S.Ct. 2739. has Supreme § Court The U.S.C. 1350. foreign avoid “Congress intended stat jurisdictional is a that the ATS held 707, 124 S.Ct. Id. at country exception.” a new cause does not create ute then, doctrine, headquarters The 2739. of interna torts in violation action for application its because inappropriate was 713-14, Sosa, at tional law. number of in a substantial would “result fact that the ATS does very foreign law the applying cases does not a cause of action not establish meant country exception was foreign See id. has no that the ATS effect. mean As 124 S.Ct. 2739. avoid.” Id. argu (rejecting the headquar- rejected the result, ... with ATS was stillborn that “the ment the FTCA’s and held “that ters doctrine authorizing expressly statute out a further all exception bars claims foreign country action”). Instead, causes of adoption of foreign ain any injury suffered based on the ATS to under are courts authorized of where tortious country, regardless for cer causes of action private “recognize Id. at occurred.” act or omission of na- law violation tain torts in 5.Ct. 2739. immunity sovereign waived eighth ed States has not in their Appellants also asserted 6. The torts, for constitutional United States that the was and ninth claims claims the constitutional have not addressed The dis- Constitution. liable under appeal. States on against the correctly that the Unit- determined trict court 724, tions.” Id. 124 S.Ct. 2739. This sovereign immunity is that the United reflects Supreme authorization Court’s States cannot be sued at all without the Congress belief that the First enacted the consent of Congress.” Freeman v. United the understanding ATS “on that the com- States, 326, (5th Cir.2009) 556 F.3d 334-35 provide law would mon cause of action (quoting Block v. N.D. ex rel. Bd. Univ. the modest number of international for law Lands, & Sch.

violations a potential personal with lia- 1811, (1983)) (internal 75 L.Ed.2d 840 quo- bility at the time.” Id. Courts must exer- omitted). tation marks Because sovereign restraint, however, cise in considering immunity jurisdictional nature, is “Con- require these causes of action “should gress’s “waiver of must unequivocal- [it] be any claim on present-day based law of ly expressed in statutory text and will not ” to rest on a norm nations- of international (alteration be implied.’ Id. at 335 in origi- accepted by character the civilized world nal) Pena, (quoting Lane 187, v. specificity and defined with a comparable 192, 2092, 135 L.Ed.2d 486 18th-century to the features of the para- (1996)). Nothing in the ATS indicates that digms” the Court Id. at recognized. Congress intended waive the United 124 S.Ct. 2739. States’ sovereign immunity. The ATS simply full, provides, in as follows: “The Appellants The they believe have district courts shall original jurisdic- have by satisfied this standard alleging that the any tion of civil action an alien for a States United the international violated only, tort committed in violation of the law prohibition against “extrajudicial killings.” treaty nations or a of the United case, Even assuming that to be the § States.” 28 U.S.C. 1350. This language still Appellants must show that the United explicit contains no sovereign waiver of has sovereign States waived immunity for immunity nothing and does more than es- this claim. Other courts to address this tablish district courts original have issue held that the ATS does not jurisdiction to consider discrete set of imply any sovereign waiver of immunity. cases. See, e.g., States, Tobar v. United 639 F.3d (9th Cir.2011) (“[T]he Alien establish, indepen- must

Tort Statute has interpreted been as a ATS, dent of the that the United States jurisdiction statute has not been has consented to They —it suit. have failed to to imply any held waiver of sovereign im Though they do so. reference several (alteration munity.” original)); Goldstar claim, support treaties to Appel- their (Pan.) States, S.A. v. United 967 F.2d lants have any not referenced language (4th Cir.1992) (same); Sanchez-Espi indicating that the States has con- Reagan, v. noza 207 sented to suit under of these treaties. (D.C.Cir.1985) (“The Alien Tort Statute Accordingly, the court properly district not a itself is waiver sovereign immuni claim dismissed the brought under the ty.”). These courts “any have held that ATS.

party asserting jurisdiction under establish, Alien Tort Statute indepen must III. BIVENS ACTION AGAINST statute, of that dent United States AGENT MESA Tobar, has consented to suit.” 639 F.3d at turnWe now to the Bivens ac 968.). (quoting Goldstar, F.2d Mesa, against Agent tion requires which agree We interpretation with this an analysis Agent Mesa’s entitlement to of the ATS. “The qualified See, rule of federal immunity. e.g., basic Wilson v. Bush, Boumediene 603, 119 S.Ct.

Layne, 526 (2008), the 2229, 41 171 L.Ed.2d 128 S.Ct. (1999). doctrine of 818 143 L.Ed.2d artic- its provided clearest Supreme Court the operates which immunity, qualified ap- the governing the standards ulation of Bivens, “pro- § 1983 and both same under principles constitutional of plication civil liability for from officials public tects whether Court addressed abroad. The does their conduct insofar as damages enemy combatants designated as aliens statutory or con- clearly established violate Bay had the at Guantanamo and detained a reasonable which rights of stitutional corpus. of habeas privilege v. Brown known.” would person 732,128 S.Ct. 2229. 553 U.S. at Cir.2011) (5th 245, 249 Strain, F.3d 663 omitted). the Court addressing question, In as- this (internal marks quotation the on sparse precedent its immunity, we determine first discussed sessing qualified found scope and geographic has “(1) plaintiff Constitution’s that the the facts whether argu- “the undermine Government’s it to of a constitu- violation out a alleged make nonciti- that, applied to least as ment at (2) right the whether right; and tional necessarily stops zens, the Constitution time of at the clearly established issue was Id. at sovereignty jure de ends.” where Ra- alleged misconduct.” the defendant’s 755, example, For 2229. 128 S.Ct. (5th Martinez, 369, F.3d 375 716 v. mirez addressed “whether Insular Cases7 249) Cir.2013) Brown, F.3d at (quoting Constitution, force, applies by its own omitted). “A (internal marks quotation Id. at not a State.” territory that is ‘it would clearly when right established is cases, the 756, In those 2229. 128 S.Ct. his a reasonable officer be clear to inde- has that the Constitution Court held he situation unlawful conduct was ” newly acquired territories force in pendent v. (quoting Jones Id. confronted.’ of inherent difficulties recognized the but (5th 344, 351 F.3d Cnty., 678 Lowndes these system onto legal a new imposing Cir.2012)). 757, 2229. 128 S.Ct. societies. Id. Appellants’ attacks Agent Mesa in the doc- resulted “These considerations im- qualified prongs on both claims under incorporation, trine of territorial argument, first munity analysis. His in full in applies which Constitution violation, is no constitutional there was surely destined Territories incorporated (1) any consti- relatively straightforward: in unincor- part but for statehood occurred injury tutional would have il- doctrine Id. This porated Territories.” (2) does not Mexico; the Constitution granted “the took lustrated that in- nationals foreign to guarantee rights unincorporated Territories that even in territory of the sovereign was jured of the United States outside Government (3) States; Appel- inhabitants therefore provide noncitizen bound person- violation. fundamental state a constitutional of certain ‘guaranties lants cannot ” Constitution,’ in the rights al uncomplicated presentation declared This prac- the “inherent recognizing still application, while extraterritorial Constitution’s enforcing all constitu- the Su- tical difficulties however, represents longer no every- ‘always provisions tional preme view. Court’s application the Constitu- work for selective to the series Cases refers 7. “The Insular term 1, Bidwell, ‘unincorporated’ territories.” overseas tion to De Lima of cases from Neuman, Con- (1901), The Extraterritorial 743, L. Gerald 45 L.Ed. 1041 21 S.Ct. Balzac Bush, 82 S. Cal. Rico, Boumediene v. stitution v. Porto After (2009). n. 22 (1922), L.Rev. the frame- established L.Ed. 627 758-59, where.’” Id. at 128 S.Ct. 2229 Court “stressed the ordering difficulties of Balzac, (quoting 258 U.S. at the Government to produce the prisoners 343). corpus in habeas proceeding,” explaining “ that it ‘would require allocation ship- practical Similar considerations were ap- ping space, guarding personnel, billeting Covert, parent in Reid v. and rations’ and damage would pres- (1957). 1 L.Ed.2d Id. at tige of military commanders at a sensitive There, the Boume- 762, time.” Id. at (quoting S.Ct. 2229 explained, diene Court six Justices held 779, 936). Eisentrager, 339 at 70 S.Ct. that civilian spouses U.S. servicemen Though prisoners the were denied access stationed abroad could not be tried before writ, the to the Boumediene Court did not military courts for murder and in- were view the having decision as adopted “a stead entitled to a trial jury. See id. at formalistic, sovereignty-based test for de- 760-61, key disagree- 128 S.Ct. 2229. The termining the reach Suspension of the plurality ment between the of four and the Instead, Clause.” Id. the Court noted that concurring justices two was over the con- practical considerations were integral Ross, precedential tinued value of In re Eisentrager and stated that “[njothing in 453, 897, 11 S.Ct. 35 L.Ed. 581 Eisentrager says jure that sovereignty de (1891), in which the had held Court “that or has only is ever been the relevant con- under some circumstances Americans sideration in determining geographic the right abroad no to indictment and reach of the Constitution of habeas 760, by jury.” trial Id. at 128 S.Ct. 2229. four-justice corpus.” 764,128 Id. at S.Ct. 2229. plurality sought to over- “insufficiently protective rule Ross as ultimately The Court determined all rights citizens,” the of American whereas of these cases shared a common thread: concurring the two sought simply Justices questions “the idea that of extraterritorial- distinguish “practical it based on consid- ity objective turn on factors and practical erations made trial a jury more feasi- concerns, not formalism.” Id. at option for spouses] ble civilian than [the it considerations, S.Ct. 2229. Based on these petitioner was for the in Ross.” Id. at the Court concluded least three 128 S.Ct. 2229. The Boumediene Court factors were relevant determining the practical noted that if considerations were Suspension reach of the Clause: irrelevant citizenship and had been the (1) the citizenship status of the and de- Reid, only relevant factor “it would have adequacy tainee and the process the necessary been for the Court to overturn through which that status determination Ross,” something the concurring jus- two (2) made; was the of the nature sites were unwilling 761-62, tices to do. Id. at apprehension where then and detention 128 S.Ct. 2229. (3) place; took practical the obsta- Practical “weighed considerations heavi- cles inherent in resolving prisoner’s ly as well in Johnson Eisentrager, entitlement to the writ. 94 L.Ed. 1255 (1950), where the Court addressed wheth- Id. at analyzing 2229. After corpus jurisdiction er habeas extended to these factors and finding practical “few enemy aliens who had been writ,” convicted of running barriers of the violating the laws of war.” Id. at Suspension held that Clause There, S.Ct. 2229. prisoners were de- “has full effect at Bay.” Guantanamo Id. at in Germany, 770-71, 128 tained the Eisentrager S.Ct. 2229. (empha- corpus.” or of habeas the Constitution precludes

Thus, Boumediene added)); (“[Questions extrater- id. sis suggests. Agent Mesa test categorical factors and objective ritoriality turn on from the may derive we else Whatever formalism.”). concerns, not Our practical jure clear: de decision, is principle one extraterritoriality analysis must therefore con “the relevant is not sovereignty track Boumediene’s. determining geographic sideration Id. the Constitution.” reach of “objective three Specifically, Instead, and the Boumediene are rele concerns” practical factors and inqui our indicate that cited therein cases extraterritoriality determina to our vant of con application ry the selective involves (1) citizenship and status tion: abroad, us requiring limitations stitutional (2) claimant, location nature of the application potential of such to balance occurred, violation where the constitutional intere countervailing government (3) inherent in obstacles practical words, inquiry is not our In other sts.8 right. id. at enforcing the claimed Cf. can be principle a constitutional whether 766-71, 128 prac The relevant S.Ct. 2229. abroad; it should. it is whether applied for consequences include the tical obstacles Covert, 1, 75, 77 S.Ct. Reid v. See abroad, rules the substantive U.S. actions (1957) (Harlan, J., 1222, 1 L.Ed.2d 1148 claim, the likeli the govern that and would (“But, me, is question the concurring) lead to ruling a favorable would hood that the Constitution guarantees which country’s govern another friction with cir apply particular in view of the should id.; Verdugo-Urquidez, ment. See necessities, cumstances, and practical the 1056; 273-74, id. at 110 S.Ct. U.S. Congress possible alternative which the J., (Kennedy, concurring). one of question The is had it. before exhaustive, as the are not These factors compulsion.” (emphasis not of judgment, may change with considerations relevant added)). case, they do of an individual but facts addressing questions a baseline for provide that Boum- district court concluded The extraterritoriality. bearing on this case because had no ediene Fourth “the specifically it did not address not our The factors do obviate above unreasonable right against Amendment of the reliance on the text Constitution disagree. and seizures.” searches We provisions will all constitutional itself. Not underlying facts Boumediene’s Though if application, extraterritorial equal Clause, its rea- Suspension concerned refer- any. geographical contain Some not narrow. The Court ences, Compare was so soning others do not. but Const, (“Neither involving extraterritoriality slavery cases XIII nor surveyed amend. rights spoke to exist myriad involuntary constitutional ... servitude[ ] shall States, application any place of the Con- or the extraterritorial within the United stitution, simply Suspension subject jurisdiction.”), their with U.S. Const, (“No Boumediene, ... shall be person V Clause. See amend. life, liberty, property, or with- (“Nothing Eisentrager deprived law....”). In Boume- process ever jure sovereignty is or has out due says de diene, right of the “importance habeas only relevant consideration been the ... ar- factor an unlisted reach of the itself was determining geographic Neuman, suggesting down to a sin- "boil[s] that it to the Con- aná Strangers L. 8. See Gerald ”). (1996) approach 'global process’ (associating gle right: right this due stitution concurring Reid v. Covert Justices in with Neuman, gued favor of broader reach.” ment. The Court noted that the Fourth Constitution, supra, Extraterritorial Amendment “extends its reach only to ‘the ” Accordingly, people,’ at 287. as with case of which “seems to have been a constitutional interpretation, employed extraterrito- term of art in select parts of the riality Constitution,” require analysis determinations an including Preamble, Ar- text, I, operation, history First, of the ticle Second, of the and the Fourth, Ninth, specific provision involved. and Tenth Amendments. Id. at 265, 110 Although S.Ct. 1056. not conclu- mind, principles With these ana- we sive, the Court found this exeges- “textual lyze may whether the Constitution be held is” to suggest that “the people” in the claims, apply Appellants’ to the begin- Constitution “refers to a persons class of ning with those asserted under the Fourth who part are of the community national Amendment. who have otherwise developed sufficient connection with this country to be IV. FOURTH AMENDMENT consid- ered part of that community.” Id. The The Fourth provides, Amendment “The then history examined the of the right of the people to be secure in then- drafting of the Fourth Amendment and houses, persons, effects, papers, concluded that “[t]he available historical against unreasonable searches and sei data shows ... purpose Const, zures, shall not be violated.” U.S. Fourth Amendment protect was to amend. IV. United States v. Verdugo- people of the United States arbi- Urquidez, 259, 110 1056, 108 trary by action Government; their own it (1990), 222 Court, L.Ed.2d the Supreme in suggested was never that the provision decision, a 5-4 question addressed the of was intended to restrain the actions of the the Fourth Amendment’s extraterritorial Federal Government aliens outside There, reach. the DEA cooperated with of the territory.” 266, United States Id. at Mexican police officers apprehend to Ver 110 S.Ct. 1056. dugo-Urquidez, a citizen and resident of Mexico. Verdugo-Urquidez, The Court next 494 U.S. at determined that the 262, 110 S.Ct. 1056. Ninth Circuit’s global contrary Mexican then view officials was to precedent, authorized the DEA to the Court’s Verdugo- citing search the same Urquidez’s residences, Mexican cases on which rely it would later DEA agents tally 268-70, seized a sheet to Boumediene. See id. at believed re 110 S.Ct. flect the quantities marijuana distinguished 1056. The Court Verdugo- the cases Urquidez on, smuggled Verdugo-Urquidez had into relied noting the United that Id, 262-63,110 States. at those cases S.Ct. 1056. The that “establishfed] aliens district granted court receive constitutional Verdugo-Urquidez’s protections when suppress evidence, they motion to have come territory this within the affirmed, Ninth Circuit United States and concluding developed that the substantial Fourth applied country.” Amendment connections with this extraterritori Id. at ally to 110 Verdugo-Urquidez, the searches and that S.Ct. 1056. the DEA contrast, agents justify “significant had failed to had no voluntary their warrant- con- premises. less search of the nection” to the Id. at United States. Id. 110 S.Ct. 1056. Finally, the prac Court addressed the appeal, Supreme

On began its tical problems with the Ninth Circuit’s review of the Ninth by ruling. Circuit’s decision The Court noted that the Ninth focusing on the text of the Fourth global Amend- Circuit’s apply rule “would not assent to their immediate gave who sons operations enforcement law

only to As 1056. at S.Ct. its terms.” Id. foreign policy other abroad, also to but weight on result, “place he could not a result ‘searches might operations which ” Fourth people’ to ‘the 1056. the reference at S.Ct. Id. or seizures.’ its restricting as a source of “frequently Amendment States Because Instead, Kenne- of this Justice Id. protections.” Forces outside Armed employs that Fourth the “restrictions of the application dy concluded country,” the could with reference those circumstances must observe “to United States Amendment ability po territory jurisdic- of the disrupt beyond aliens its to significantly foreign to the respond general principles to ... on depend[ tion ] litical branches interest.” involving inquiry our national an as who not on interpretation, situation Additional 273-74, 1056. or a construction at formed the Constitution Id. the Ninth being as rights cautioned are mentioned ly, the Court that some ” government plunge people.’ rule would of ‘the Id. Circuit’s those uncertainty as to a sea of officials “into lesson from Kennedy, the For Justice way in the reasonable might be what “not that the prior cases was the Court’s abroad.” conducted and seizures searches overseas, but apply’ ‘does not Constitution at Id. in the Constitu- provisions that there are considerations, all of the above Based on necessarily apply all tion which do of the rejected application the Court every foreign place.” Id. circumstances Verdugo-Urqui- Fourth Amendment Reid, (quoting dez’s case: (Harlan, J., con- text of Fourth think We words, ... there is no “In other curring)). Amendment, our history, and cases its Congress, as rule that rigid and abstract of the Consti- application discussing the exercising power precedent condition extraterritorially re- tution to aliens overseas, exercise it must over Americans respondent’s claim. rejection of quire of the Consti- subject guarantees to all the search, was he At the time tution, the conditions and no matter what with no of resident Mexico citizen and make adher- are that would considerations the United to voluntary attachment im- altogether guarantee a specific ence to was locat- States, searched place and the 277-78, at anomalous.” Id. practicable and circum- these in Under ed Mexico. omitted). (citation Based 110 S.Ct. 1056 has no stances, Fourth Amendment the Kennedy agreed reasoning, Justice on this application. “[t]he the outcome because with Court’s 274-75,110 at S.Ct. 1056. Id. of this case conditions considerations and the Fourth adherence to would five Justices make Kennedy, one of the Justice im- requirement warrant no Fourth Amendment’s that join agreed opinion, to the 278, at anomalous.” Id. practicable and occurred but had violation Amendment that the “ab- views, He noted 110 S.Ct. 1056. his even explain separately wrote to avail- judges magistrates or sence of local “depart them to though he did not believe warrants, differing the and able to issue opinion the from respects in fundamental conceptions of 275, perhaps unascertainable 110 S.Ct. 1056 at Id. Court.” prevail that privacy J., Specifically, reasonableness concurring). (Kennedy, with abroad, cooperate the need to Kennedy “[t]he force believed that Justice the Fourth indicate all that foreign officials because is not confined Constitution should requirement warrant Amendment’s per- being by certain it into brought was 265 Emmanuel, 1324, it in this States v. 565 F.3d in Mexico as does 1331 apply not (“Aliens (11th Cir.2009) “[f|or reason, enjoy do Thus, in certain Id. this country.” rights, protection but not the persuasive justifica- addition to the other they the Fourth if Amendment have ‘no Court,” Kenne- by tions stated Justice previous significant voluntary connection dy that no violation of the Fourth agreed States(alteration with the United had occurred. Id. Amendment original) (quoting Verdugo-Urquidez, 494 court here relied on Verdu- The district 1056)). addition, S.Ct. to hold that Hernandez go-Urquidez just two weeks after the Court issued could not invoke the Fourth Amendment’s Boumediene, which Appellants argue es- protection because he was an alien with- sentially Verdugo-Urquidez, overrules sufficient, voluntary to out connections Court decided District Columbia v. Hel- rely the United States. The ler, chal- Kennedy’s on Justice concurrence to (2008), L.Ed.2d favorably cited lenge ruling. this Because Justice Ken- Verdugo-Urquidez’s peo- definition of “the nedy any weight on the “place did explained The Heller that ple.” people’ reference to ‘the the Fourth people” persons “the referred “to a class of Amendment,” Appellants argue part community who are of a national plurality agreed of the Court developed who have otherwise sufficient sufficient connections to aliens must have country connection with this to be consid- able to invoke the the United States be part community.” ered of that Id. at Rather protection. Fourth Amendment’s (citing Verdugo-Urquidez, apply nonbinding than this “sufficient con- 1056). Indeed, test, Appellants urge nections” us to Verdugo-Ur- our own court has relied on rely “practical on the and functional” test people” “the quidez’s definition of Kennedy’s articulated in Justice concur- context of the Amendment. Second See rence, they which was confirmed believe Portillo-Munoz, United States v. 643 F.3d appropriate as the test Boumediene. Cir.2011). (5th examples These Appellants’ attempt undercut to dis- Despite Appellants’ arguments Verdugo-Urquidez. credit contrary, ignore a we cannot decision Supreme from the Court unless directed to reject argument the Appellants’ We also do so the Court itself. See Ballew v. Rehnquist’s opinion Justice Chief (5th Airlines, Cont’l Verdugo-Urquidez represented only plu- Cir.2012). While Boumediene Court rality view on the sufficient connections appears repudiate the formalistic rea- requirement. Kennedy expressed Justice soning Verdugo-Urquidez’s sufficient majority’s disagreement justi- no with the test, continued to connections courts have fications, describing “per- instead them as rely on the sufficient connections test and suasive,” 278, 494 at 110 1056 U.S. S.Ct. interpretation its related of Fourth the J., (Kennedy, concurring), finding that Amendment text. Other circuits have re- “depart not in fundamental his views did Verdugo-Urquidez’s interpretation lied on respects” majority, from those of the id. at to limit the Fourth extrater- 275, Amendment’s unsurprising 110 S.Ct. 1056. This is See, e.g., Dep’t joined ritorial effect. Ibrahim v. considering Kennedy that Justice (9th Sec., 983, reject Homeland 669 F.8d 997 of the Id. opinion Court. We of Cir.2012) connec- (applying Appellants’ parse sufficient invitation to those conjunction nullify in in conflicts to writings tions test with Bourne- search of holding. approach); diene’s functional United Court’s 266 only allege that Hernan sum, apply Appellants to the suffi- tion. we are bound game touching that Verdugo- played dez involved requirement

cient connections in fence and “had no interest light must do so the border Urquidez, and we approach. entering functional the United States.” See Boume general Boumediene’s diene, 766, 2229 is not an im- 553 U.S. at 128 S.Ct. Reconciling approaches these task, (noting Bay that detainees at Guantanamo possible though, because the Verdu- a con relied on more than have been held “for the duration of go-Urquidez Court already longest among Fourth Amendment to flict that ... is just the text of the Verdugo-Urquidez, history”); Verdugo-Ur wars American holding. reach its See 272, 1056 (recogniz- quidez, 110 1056 494 U.S. at 110 S.Ct. 494 U.S. at S.Ct. exegesis (noting Verdugo-Urquidez no that was ing [was] that its “textual conclusive”). days”); It relied on the histo- United States “for a matter of means Ibrahim, Amendment, (holding at 997 ry id. at 110 S.Ct. see also 669 F.3d 268-73, id. at 110 that Ibrahim established a sufficient con prior precedent, years study practical consequences, id. nection as a result of her four S.Ct. States). 273-75, ing in the do at 110 S.Ct. 1056—all factors suggest “accepted we must consider after Boumediene. that Hernandez obligations,” including some societal even Under this we conclude approach, immigra obligation comply with our voluntary that Hernandez lacked sufficient laws, might him to tion have entitled in connections with the United States to protection. Verdugo- See Though voke the Fourth Amendment. 1056; Urquidez, 494 U.S. at presence Hernandez’s lack of territorial Gonzalez, Martinez-Aguero v. 459 F.3d place categorical does not bar on the (5th Cir.2006) (holding that alien’s claims, Appellants’ Fourth Amendment entry “regular and lawful of the United Appellants nevertheless do not show that pursuant border-crossing to a States valid formed Hernandez sufficient connections acquiescence sys ... in the card and U.S. Boumediene, with the United States. See immigration voluntary constitute^] tem 762-764, (reject at acceptance obligations, rising of societal formalistic, ing sovereignty-based test ”). the level of ‘substantial connections’ reach); determining extraterritorial see Therefore, voluntary Hernandez’s connec Ibrahim, at (noting also tions with the United States were insuffi forming activities abroad can contribute cient to invoke the Fourth Amendment. States). sufficient connections to United Mexico, Finally, Hernandez a citizen of not the our reluctance to was extend Boumediene, United States. See the Fourth these re Amendment on facts 766, 128 (weighing citizenship flects a number of practical considerations. determining 2,000-mile-long and status of detainee in “The border between Clause); Suspension reach of the Verdu Mexico and the United States is the busi world, million go-Urquidez, est with over 350 (citing crossings per year.” cases that accord different Br. of Gov’t of the citizens). protections to aliens than to United Mexican States as Amicus Curiae Support Appellants, long This fact alone is not dispositive, see We Boumediene, recognized unique 553 U.S. at 128 S.Ct. this area is for Fourth 2229; instance, alleged, purposes. based on the facts Hernan For we Amendment powers dez lacked a the allow broader search at our inter sustained connection with functional protec- United States sufficient to invoke national borders and their protec involving “national self tions our national equivalents because interest” and reasonably requir[es] entering one plunge tion could also Border agents Patrol identify himself as entitled to country to uncertainty might “into sea of as to what in, belongings come and his as effects be way reasonable of searches and may lawfully brought be in.” Al which seizures conducted abroad.” 494 States, v. United 413 U.S. meida-Sanchez 273-74, 110 266, 272, 2535, 37 L.Ed.2d 596 93 S.Ct. Thus, the Supreme under Court’s di- States, (1973) (quoting Carroll considering rectives and the national inter- 69 L.Ed. borders, along ests stake our we hold (internal (1925)) quotation marks omit that, presented under the circumstances ted). decade, “the number of past alleged occurring here —an seizure outside agents Border Patrol has doubled from our involving foreign border and nation- 10,000 21,000 than approximately more al—the Fourth ap- Amendment does not agents,” agents working with most of these ply- along the border. Border Secu Southwest rity, Opportunity, Economic and Immi V. FIFTH AMENDMENT gration Hearing Modernization Act: on Comm, S. the S. on the Judicia 7UkBefore We turn now to the Appellants’ (2013). ry, Cong. Department The 113th Fifth Amendment claim. The Due Pro Security of Homeland now uses advanced cess Clause of the Fifth pro Amendment borders, “in technologies to monitor our vides, person “No ... deprived shall be units, cluding mobile surveillance thermal life, liberty, property, pro without due imaging systems, large- and small- Const, cess of law.” U.S. amend. This V. inspection equipment,” scale non-intrusive protection contains both a as well as “124 aircraft and six Unmanned procedural component. substantive and a Systems operating along Aircraft component “prevents The substantive Southwest border.” Id. at 6-7. These from government engaging conduct that sophisticated systems of might surveillance with ‘shocks conscience’ or interferes carry implications with them a host of rights ‘implicit concept in the of ordered ” Amendment, Kyllo the Fourth v. Unit cf. liberty,’ procedural compo whereas the States, 27, 40, ed any government action nent ensures (2001) (holding 150 L.Ed.2d 94 that when scrutiny surviving process substantive due government “uses a device that is not in a “implemented is fair manner.” Unit use, in general public explore details of Salerno, ed States v. previously the home would have been (citations (1987) 2095, 95 L.Ed.2d 697 intrusion, physical unknowable without omitted). presump surveillance is a ‘search’ is Appellants’ implicates claim warrant”), tively unreasonable without a component the substantive of the Fifth they strictly do not look inward. We Spe Amendment’s Due Process Clause. cannot know all of the circumstances cifically, Appellants allege which these tools will be used to effect a disregard for Her Mesa showed callous search or seizure outside our borders. that, rights using nandez’s Fifth Amendment But do in Verdugo- we know as excessive, deadly Hernandez force when Urquidez, “Application of the Fourth presented was unarmed and no threat. Amendment to circumstances could [these] claim unusual because ex significantly disrupt ability polit type This is typically analyzed ical claims are respond foreign branches to situa- cessive-force I, Indeed, Article considered justified by be Amendment. the Fourth under specific protections of applies, ex- connection with the Amendment the Fourth when analyzed un- Fifth and Sixth Amend must be Article III and the claims cessive-force Connor, ments”). Thus, the Fifth Amend Graham whether der that amendment. But when objective depends at 109 S.Ct. here on the applies 490 U.S. ment by the Fourth not covered recog a claim is concerns we practical factors and that an Amendment, recognized Boumediene, we have at 553 U.S. nized above. See may asserted as a claim be excessive-force 766, 128 S.Ct. 2229. See, e.g., Petta v. process.

violation of due factor is the The first relevant (5th Cir.1998) Rivera, 143 F.3d In of the claimant. citizenship and status “assert- plaintiffs had (concluding that citizenship a claimant’s territory, side § a consti- 1983 for ed a valid claim under ordinarily impact no on whether will force under for excessive tutional violation is entitled to constitutional the claimant Amendment”). ques- The the Fourteenth involving the protection. But cases “[i]n pro- whether this tion now is application of the Constitu extraterritorial extraterritorially. applied tection can be tion, taken care to state [the has] Court Application claiming protection its person whether the A. Extraterritorial Verdugo-Urqui is a citizen or an alien.” Fifth Amend Appellants’ (Ken dez, at 110 S.Ct. 1056 494 U.S. by prior claim is not constrained ment (citations omitted). J., nedy, concurring) extraterritoriality, unlike precedent on “The distinction between citizens and Amendment. claim under the Fourth their proposi aliens follows from the undoubted First, text does not Fifth Amendment’s create, does not tion that the Constitution category of individuals entitled limit the create, general principles do of law nor Cannatella, See, Lynch v. protection. e.g., juridical country our relation between (5th Cir.1987). 1374-75 undefined, and some limitless class non- applies Fourth Amendment Whereas beyond territory.” our citizens who are art, a term of people,” to “the that a claimant’s Id. Boumediene teaches applies express its Fifth Amendment it citizenship dispositive, provided is not as Therefore, our “any person.” Id. terms example an of a limited “class of nonciti “[excludable court has concluded that protection, zens” entitled to constitutional sig Id. This non-persons.” aliens are i.e., Bay. those detained at Guantanamo leads us to nificantly language different citizenship impor still But the focus on is Verdugo-Urquidez’s the conclusion that given significance applying tant con test, provides which sufficient connections all, at let protections stitutional abroad people,” “the does not gloss for the term Here, undisput it is alone to noncitizens. the extraterritorial apply interpreting Mexican citizen ed that Hernandez was a Fifth Amendment. Ad application of the to the States. with no connection recog has ditionally, Supreme Yet, “enemy unlike the aliens” detained protections Fifth Amendment nized some during post-World the Allied Powers’ War See, Reid, extraterritorially. e.g., apply at occupation Eisentrager, II 18-19, 1222 (plurality at 77 S.Ct. (Frank 765-66, “enemy com or the 49, 77 id. at opinion); that, pursuant held to the Authoriza furter, J., batants” concurring) (concluding in Boume overseas, Military tion for Force “the Use capital as to cases least diene, jurisdiction over exercise of court-martial killed outside an was a civilian dependents peace

civilian in time of cannot Hernandez Thus, above, favor. As mentioned zone or theater of war. Boumediene occupied citizenship weighs rejected while Hernandez’s reading such a formalistic of Ei- his application, sta- against extraterritorial sentrager. Although jure sovereignty de not. tus does upon “is a factor that bears which constitu- tional guarantees apply,” nothing “in Ei- requires factor us to look at The second sentrager says jure that de sovereignty is alleged of the sites” where the the “nature Boumediene, or has ever been the relevant consid- occurred. In violation determining of eration in geographic examined the level control Boumediene, the site where United States exerted over reach of the Constitution.” apprehension and deten- 764,128 individual’s at S.Ct. 2229. that, concluded tion occurred. The Court Based on the nature of the border area Bay “technical- although Guantanamo was occurred, shooting where the we cannot ly sovereign territory of the outside say that the United States no exercises States,” the United States “has United control. Unlike both Guantanamo and complete uninterrupted maintained Prison, Landsberg this is not a case re- bay years.” control of the for over quiring constitutional in a application far- Boumediene, 764, 768, away standing location. Mesa was “polit- S.Ct. 2229. The court looked to the States, very inside the United an area history” and took into ical of Guantanamo control, much within U.S. when he commit- agreement permit- the lease consideration agents ted the act. Border Patrol exercise ting the States to maintain control United their official duties within feet of where 764-65,128 over Guantanamo. Id. at alleged constitutional violation oc- contrast, reasoned By the Court fact, agents curred. act on or occasion- control over Lands- that the United States Germany ally they protect. even berg occupied Prison in across border Eisentrager was transient and that case Amici for inform us that Bor- States was accountable to its agents reportedly fatally der Patrol occurring “Allies for all activities there.” shot and killed individuals across the bor- Id. at 70 S.Ct. 936. incidents. See Br. of Amici der several Border Network for Human Curiae reject Agent argu- We therefore Mesa’s al., Support Appellants, of 8- Rights, et Eisentrager ment held that —which Therefore, sense, very 12.9 in a blunt beyond juris- enemy aliens the territorial agents power Border Patrol exercise hard diction of court of the United States far across the border at least as as their of the protections could not invoke the injures compels Fifth a result in his U.S.-based use of force individuals. Amendment — Emerge Following Investigation into 9. See also More Accounts eral Close the Officials LaMadrid, 9, 2013, Aug. Deadly Shooting, Nogales Border Internation- Death Carlos of al, http://perma.cc/H64L-AYD4 (declining http://perma.cc/Q335-QL34 Jan. agent (reporting agent prosecute fired at that a Border Patrol shot and Border Patrol who individual across border shot and killed U.S. killed Mexican national Ramses Barron Tor- res, 17, Madrid, 19, standing Nogales, who in the line who was Mexi- citizen Carlos was Affairs, Justice, fire); co); Stickney, Dep’t R. ACLUCalls Probe in Office of Public Investigation Shooting, Diego, Federal Close the into Border NBC San June Officials Barron-Torres, (reporting Aug. http://perma.cc/TMD5-EMAQ the Death Ramses (conclud- http://perma.cc/6Z3U-4MWJ agent and killed Mexi- that Border Patrol shot Reyes ing can Jose Alfredo Yanez on that Barron-Torres was "on the Mexico national shot”); Diego, side border fence when he was Mexican side of border fence near San Affairs, Justice, California). Dep’t Office of Public Fed- power look the border is not transient. further instructs us to Boumediene history of a location to distinguished Eisentrager Boumediene be- political at the might States how the United understand cause the control the United States exer- Here, the control exer- exercise control. Landsberg Eisentrager in in cised Prison shootings reflects in cised cross-border here, But Border Patrol was transient. protec- customs and border broader U.S. agents representatives tempo- are not of a control be- expand U.S. policies tion They influen- rary occupational force. are borders. The nation’s territorial yond the repeat players tial in a “constant” border explains Border Patrol Chief of the U.S. Boumediene, 553 at relationship. See U.S. security policy “extends border U.S. 768-69, Second, 2229. offi- outward, security zone of nation’s] [the are not “answerable to” cers the border physical that our border is ensuring way in the Lands- partners U.S. border defense, line of but one of the first or last berg jailers were to Allied authorities. Id. Borders n — Securing Opera- Our many.” fact, 128 S.Ct. 2229. In the Mexi- and the Path Forward: tional Control government requests govern- can that U.S. on Border Hearing the Subcomm. Before ment actors are held accountable in U.S. Comm, Security the H. and Maritime of territory. for actions on Mexican courts Cong. 112th Security, on Homeland Br. of Gov’t of the United Mexican States (2011) (prepared statement of Michael J. Support Appellants, as Amici Curiae in of Patrol). Fisher, Border For Chief of U.S. Therefore, this situation is different example, Bureau of Customs and Border Germany, occupation from the Allied of are authorized to con- Protection officials accountability. where authorities shared examination and in- “preinspection” duct spection passengers of for final determina- sum, though even the United States admissibility port tion of and crew “at the has no formal control or de facto sover- place foreign territory.” in 8 C.F.R. border, of eignty over Mexican side 235.5(b); Shachar, Ayelet § see also The heavy presence regular activity of Immigration Regula- Shifting Border of agents permanent federal across a border tion, & 174-77 3 Stan. J. C.R. C.L. accountability weigh without shared (2007). Moreover, this recent articulation recognizing of favor some constitutional policy appears of extraterritorial to be reach. in long history the latest manifestation of Finally, practical we address the obsta- beyond involvement United States Bitran, cles and other functional considerations ex- See Eva U.S.-Mexico border. Note, Boumediene at the Border? The application present. traterritorial would Foreign Nationals on Constitution and recognized practical We some of the con- Border, 49 Harv. the U.S.-Mexico C.R.- already: the national cerns interest self- (2014) (collecting C.L. L.Rev. 244-47 protection; the constant need for surveil- examples showing historical that United lance, technologies; often with advanced powerful States “exerts and has exerted varying degrees over and concerns rea- Mexico”). influence northern over depending agent’s sonableness on an loca- any given prac- tion at time. While these The Border Patrol’s exercise control against tical the Fourth concerns counsel through its use of force at and across the they do not car- application, Amendment’s closely border more resembles the control Fifth ry weight the same Amend- United States exercised Guantana- ment different standards mo than it over context because does the control Lands- First, berg Eisentrager. govern respective Prison in claims. political cern that “the protects Fourth Amendment branches have the The power and sei- to switch the Constitution on or off against unreasonable searches zures, while, context, represent striking in this the Fifth at will” and would “a arbitrary- anomaly in our protects tripartite system gov- Amendment ernment”). Indeed, strict, conduct that shocks the conscience. territorial required satisfy approach agents would allow to move in egregiousness level of strictures, against pro- militates out of constitutional creat- the latter standard ing That approach that reaches it. We ab- zones lawlessness. tecting conduct perverse would establish a rule that would Fourth Amendment placing stained from subject differently treat two individuals part limits on actions across the border merely same conduct because one national preserve to allow officials to our managed territory. to cross into our self-protection. in A reasonable- interest injected limitation would have uncer- ness Significantly, recognizing extraterritorial tainty government’s into the decision-mak- Fifth application of the Amendment for in ing process, perhaps resulting adverse conscience-shocking conduct would not for actions abroad. consequences U.S. change force agents to their conduct to interest, however, no plays That role newly conform to a articulated standard. determining whether an alien is entitled to already recognized We have that aliens protection against arbitrary, conscience- borders, inside our even those found to be shocking conduct across the border. This excludable, are “to gross entitled be free of from principle protecting individuals arbi- physical abuse at hands of state or our trary conduct is consistent with those Lynch, federal officials.” 810 F.2d at government recognized has international- 1374; also Martinez-Aguero, see 459 F.3d ly,10 hardly it here applying would (“Lynch at 626 on plainly confers aliens government. cause friction with the host disputes agents right with border a to be a government The Mexican submitted force, free from excessive and no reason- “allay seeking brief concerns that able officer would believe it proper beat ... ruling plaintiffs’ a favor would provocation, a defenseless alien without as or sovereignty interfere with Mexico’s oth- Martinez-Aguero alleges.”). To extend practical erwise create difficulties.” Br. of right injured that to those across the bor- Gov’t of the United Mexican States as by der U.S. officers located the United in Support Amici Curiae 3. have the unremarkable effect States would informing they federal officials that are Because Mesa was inside our arbitrarily inflicting prohibited also from territory allegedly uncon when he acted new, similar, harm in this but context. States, stitutionally, like in Boumediene, “is, practical pur applicable for all We will enforce the constitu- textual, prece- to no other tional unless poses, sovereign principle, answerable 770, dential, judicial practical for its acts.” 553 at barriers bar apply 2229. If the Constitution does not redress of constitutional violations—that here, is, “impracticable it is not enforcing check on unlawful conduct when Boumediene, and anomalous.” 553 U.S. at would be which the Executive Boumediene, Reid, provides. (quoting Branch 553 128 2229 S.Ct. Cf. (Harlan, J., (noting a con- at concur- S.Ct. See, right e.g., right to life. This shall be 10. International Covenant on Civil the inherent 6(1), arbitrarily Rights protected by art. Mar. law. No one shall be Political life.”). ("Every being deprived human has of his U.N.T.S. 171 rejected imply- Supreme hold Court has since not. therefore it is We ring)). Here Fifth action in a different injured ing outside the Unit- Bivens that a noncitizen arbitrary official Amendment Due Process case. See Wilk- as a result ed States (declin- ie, officer locat- enforcement conduct a law ing recognize a Bivens action under the may invoke the States ed the United against Fifth Amendment for a landowner by the Fifth Amend- provided protections management agents accused federal land ment. harassment). Instead of an amend- ment-by-amendment Action ratification of Bivens B. Bivens actions, we are bound to examine each new Next, must address whether we is, re- “potentially context —that each new a cause of action Appellants have curring legal that has similar scenario they allege. for the violations Agent Mesa Ashcroft, Arar v. components.” factual may sue federal person “Under Bivens a (2d Cir.2009) (en banc). 585 F.3d damages when the federal agent money context, defining we describe a allegedly person’s has violated agent spe- too general, scenario neither too nor rights.” Martinez-Aguero, cific. Id. at 622 n. 1. Yet Bivens is “not an Wilkie v. Rob automatic entitlement.” appears present case to a This bins, 550, 2588, 537, 551 168 U.S. context, though category new of feder (2007). Supreme L.Ed.2d 389 Court itself, al not In defendants is new. Bivens “consistently refused to extend Bivens has Supreme recognized a Fourth Court liability any catego to new context or new Amendment claim for unreasonable search Corp. v. ry of defendants.” Corr. Servs. against and seizure federal law enforce 515, Malesko, 61, 68, 122 S.Ct. 534 U.S. agents. 91 ment 403 U.S. S.Ct. (2001). 456 151 L.Ed.2d addition, permit 1999. In our has Court bring ted a non-citizen to a Bivens action 1. New Context against agents Border Patrol for false ar matter, then, preliminary As a we rest and excessive use of force under the presents occurring must decide whether this case a Fourth Amendment for events might Martinez-Aguero, in which at the border. 459 ap “new context” Bivens Finally, implicitly at 625. our ply. The district court concluded this F.3d recognized rights against an noncitizens’ present case did not extension Bi fed vens, Supreme pre gross because the Court had eral officials for Fifth Amendment claims, a for a did viously recognized physical explicit Bivens action abuse but not ly Fifth whether the extension of Bivens claim under the Amendment. See discuss Passman, 228, 248-49, appropriate. Lynch, 442 in that case was 810 Davis v. U.S. (1979) (ex 2264, 1363, Lynch “gave 99 60 L.Ed.2d 846 F.2d 1374. Because S.Ct. attention,” only tending employee’s cursory Bivens action for Fifth the matter still we complete analysis Amendment Due unconsti need to conduct “a more Process Clause Buchan, gender question.” Engel tutional discrimination action of the See v. (7th Cir.2013) (conduct But against congressional employer). 703 ing analysis though prior district court’s conclusion overlooks the Bivens even court extended Bivens in the context-specific approach Supreme implicitly had context). sum, faced with a new adopted deciding Court has whether to same Malesko, situation, analyze an in extend a Bivens action. See 534 we must whether all, remedy have a Bivens aris- at 122 515. After dividual should S.Ct. native, against existing process merely has to the Fifth Amendment ing under “provide roughly po- similar incentives for con- agent for his federal law enforcement comply tential defendants to with [the force science-shocking use of excessive requirements] while also across our nation’s borders.

providing roughly compensation similar Engel, victims of violations.” 710 F.3d at Extending Bivens Action (alteration original) (quoting Min- Having determined that this case neci, 625). at According S.Ct. to the context, we must decide raises a new government, Mexican the Appellants can- remedy. whether to extend a Bivens We Agent courts, not sue inMesa Mexican alternative, first ask “whether exist because, long “Agent as as Mesa avoids ing protecting for the constitution process Mexico, any travel effective and en- to a con ally recognized interest amounts remedy him against forceable can vincing reason for the Judicial Branch from come the U.S. courts.” Br. of Gov’t providing refrain from a new and free Mexican States as Amicus standing remedy damages.” Minneci 16. The Appellants Curiae — Pollard, -, may not sue Mesa under state law (2012) (quoting 181 L.Ed.2d either, plaintiffs “ordinarily because can- 2588) Wilkie, 551 U.S. bring against tort actions state-law (alterations quotation internal marks employees of the Federal Government.” omitted). Then, whether, we ask in our Minneei, (citing 132 S.Ct. at 623 judgment, “special counsel[] own factors 2679(b)(1) (“the §§ U.S.C. Westfall hesitation the absence affirmative Act”) (substituting the United States as Bivens, by Congress.” action in tort action federal defendant 1999; Minneci, see also Haley, employee)); Osborn v. S.Ct. at 621. 225, 238, 241, 166 L.Ed.2d (2007). Besides, above, as discussed Alternative a. Remedies position an individual Hernandez’s will that question Ap There is no never be able to recover under the FTCA any remedy foreign- lack alternative pellants application because of the of country exception. swpra An See Part II.A.11 right. their Fifth Amendment alter- (D.C.Cir.1997) (noting Congress that that F.3d 371-72 11. The Westfall Act also shows remedy 2679(b)(2)(A) "exception make a available provides § intended to Bivens for Bi an in most circumstances. The Westfall Act of government employees”); against vens actions expanded immunity by making officer (7th Rumsfeld, 701 F.3d Vance v. against an FTCA claim the United States an J., Cir.2012) (en banc) (Wood, concurring in 2679(b)(1), § remedy, exclusive see 28 U.S.C. — denied, U.S. -, judgment), cert. Congress implicitly also ratified the avail- but (2013); see also 186 L.Ed.2d 877 damages against ability an action for feder- Baltmanis, E. Pfander and David Re James al officers for constitutional violations'—that thinking Legitimacy Bivens: and Constitution is, a Bivens action—even where FTCA claims Adjudication, 132-38 al 98 Geo. L.J. available, 2679(b)(2)(A) § are see 28 U.S.C. (2009) "joined (arguing Congress that (the remedy exclusiveness of a under partner recognizing remedies in Court as a apply FTCA not extend or to a civil "does on] nature of a Bivens action [based against employee action an of the Govern- preservation for viola Westfall Act’s of suits brought ment ... which is for a violation of the consider [on] tion of the Constitution and States.”). the Constitution the United result, adoption.”). As a ations that led to its recognized provision have that this Courts Congress preserve has indicated an intent to expresses Congress’s preserve intent to Bivens availability of actions at least in Bivens See, Gov’t, e.g., Simpkins actions. v. D.C. (or provide purposefully an remedies omit appear do not to lack also them) situation like that in the remedy a result of Con for a as alternative presented. Quite plainly, has case even Congress choice. gress’s deliberate immigration remedy though Agent an Mesa is an skip over within not chosen to officer, “elaborate, scheme” that law enforcement see 8 U.S.C. comprehensive alleged (providing pow- § 1357 law enforcement Appellants’ cover otherwise would officers); 8 immigration Bush v. Lu ers of C.F.R. constitutional violation. See cas, 367, 385, § law enforcements (giving power 287.5 (1983); is not an Zuspann patrol agents), also v. to border this L.Ed.2d 648 see Cir.1995) (5th all, Brown, immigration case. After foreclosed Congress compre alleged that created a Mesa’s conduct (holding possibility benefits dis that Hernandez would access hensive review of veterans’ system that judicial re the remedial for removal putes explicitly precluded and Congress designed. Even had Hernan- disputes, of veterans’ benefits so view survived, he could not been de- remedy dez Congress’s failure to create a official, immigration tained a U.S. be- individual Affairs em Veterans Congress has cause he was Mexico. In ployees oversight”). par was “not an through regulation it clear its made ticular, system of remedies elaborate immigration per- it intends for procedures immigration sys and under the injured by agents— sons Border Patrol tem not relevant to this case. are they citizens or lack a dam- be not—to Ashcroft, Arar the Second Cir ages remedy for unconstitutional uses of suggested cuit but did not decide that force. “substantial, comprehensive, Congress’s Manjarrez Defendants al- Cordero and intricate remedial scheme the con ternatively contend that federal law en- immigration” might preclude text of agencies provide remedy forcement some remedy for a noncitizen al Bivens who by conducting investigations criminal leged illegally federal officials de They point to federal homi- him, incidents. Syria, tained ordered his removal to statutes, §§ cide 18 U.S.C. encouraged and facilitated his inter statutes, rights § criminal civil id. rogation under torture. 585 F.3d at 572. alternative, adequate Far from an these States, In Mirmehdi v. the Ninth procedures alleged fail to redress the harm “Congress’s Circuit held that failure to Appellants, represent to and at most a monetary Im [ include relief under the “patchwork” mere of remedies insufficient migration Nationality Act for consti Wilkie, to overcome Bivens. See tutionally hardly invalid can detention] 554, Thus, at 127 2588. for those in S.Ct. light be said to be inadvertent” in of the shoes, family’s it Hernandez is a Bi- frequent Congress given attention has Bivens, (9th remedy nothing. vens or See 403 975, the statute. 689 F.3d 982 Cir. — 2012) (Harlan, J., denied, U.S. at 91 S.Ct. 1999 -, cert. (2013). concurring). 185 L.Ed.2d 1063 But extraordinary unlike those contexts— Special Counseling b. Factors wrongful rendition and pending detention Hesitation proceedings, respectively removal is—it Congress step far from clear that intended to two of the Bivens proceed We framework, Immigration Nationality requires for the Act which us to exercise preclude where an scheme not it. those instances alternative remedial does Wilkie, “any determining in whether action. See 551 U.S. at judgment our (doctrinal workability hesitation.” We see S.Ct. 2588 of factors counsel cause special action). none. implicate any This case does not of these provided guid itself little Bivens special factors. in Mesa did not act qualifies special as a factor. ance on what military setting; nor did his actions im-

Bivens, 396, 91 1999. 408 U.S. at plicate security. national Given the simi- Supreme then the Court and our Since larity of original this case to the Bivens a handful of sister circuits have identified remedy workability and the relative of the Arar, at “special factors.” See 585 F.3d doctrine, find no we reason to hesitate (describing “special factors” as “an extending Bivens this new context. The defined”). category, easily embracing only argument might cause us to de- special factors example, For one class of remedy cline to extend a Bivens is the implied Congress’s express focuses on “immigra- Ninth Circuit’s identification of into judicial “concerns about intrusion large necessarily tion issues” writ as creat- specific classes of federal sensitive work ing special counseling factor hesitation. Engel, 710 F.3d at 707. The defendants.” Mirmehdi, Yet, as our has Supreme especially emphasized discussion alternative remedies indi- military contexts. See this rationale cates, however, think we this case does not Stanley, v. United States “immigration” present an context. More- 683-84, 3054, 97 107 S.Ct. L.Ed.2d over, if even we did treat this case as (1987) (no injuries Bivens action for aris issue,” involving “immigration an we would ing activity out of or in the course of analysis. not follow Mirmehdi’s service); military Chappell incident to Wallace, brought by challenging In a case aliens (1983) illegal prior pro- that “neces their (holding 76 L.Ed.2d 586 detention removal sarily unique military” ceedings, is a the Ninth Circuit concluded that structure “ immigration special counseling against providing pertaining factor claims ‘have remedy). tendency diplomacy, re the natural to affect Bivens Other circuits have foreign policy, security and the of the na- lied on that rationale to refuse to extend tion,’ variety arising Bivens suits in a of cases which further ‘counsels hesitation’ Arar, government extending (quoting taken our Bivens.” Id. from actions 574). See, First, e.g., Terror. Lebron v. we decline to follow its War on F.3d (4th Cir.2012), Mirmehdi, opinion unjustifi- Rumsfeld, 670 F.3d because the — denied, U.S. -, ably special extends the factors identified cert. (2012) (holding beyond specific that con in Arar well that decision’s 183 L.Ed.2d 616 security extraordinary lack of national “context of separation powers stitutional Arar, 585 F.3d at 574. As the judicial competence counsel hesitation rendition.” more than a implying enemy Bivens action for combat Second Circuit remarked "with detention); understatement, a military in of Arar “is not ants held accord dash (7th 193, immigration case.” Id. at 570. In Rumsfeld, typical v. 200 Vance Cir.2012) (en fact, banc); of Arar Rumsfeld, government’s the treatment Ali (D.C.Cir.2011). 762, circuit was so anomalous that the court concluded F.3d One rely of the reasoning provisions that immi it could not on the has even extended to statute, Mirmehdi, Immi- immigration the gration-related governing cases. Act, Nationality for of its gration and species special F.3d at 982. Another 571, workability holding. cause of See id. at 573. factor is the of the in favor of a uni- rights militates Second, acknowledge we while even shaping in form, interest significant as the Court conclud- Congress’s policy, federal “can immigration policy, which States; matters it also in Arizona v. United ed tourism, investment, trade, dip- and affect availability in of the of some militates favor Nation,” for the entire lomatic relations at the remedy for mistreatment federal — States, -, Arizona v. United immigra- our hands of those who enforce L.Ed.2d 351 allege mis- tion laws. Where those who (2012), give does not us fact alone that right remedy, a but lack a treatment have halt, hesitate, granting in let alone cause to here, Supreme suggests that as the Court Supreme remedy. The a Bivens remedy Congress would want some be emphasize recently written has available. in Congress interest has strong national from mistreatment.12 protecting aliens Third, ques- the case before us involves immigration noted that id. The Court See precisely tions of Bivens-like domestic law and ex- “perceptions policy concerns nothing more. Mirmeh- enforcement country in this who pectations of aliens implies immigration di that cases laws,” of its ac- protection seek the full more than the necessarily context involve the “mistreatment of knowledged of normal domestic law- “mere ‘disclosure may States lead aliens the United ” techniques,’ priorities enforcement reciprocal treatment of American harmful (quoting 689 F.3d at 983 Reno v. Am- abroad,” reaffirmed that citizens “ Comm., Arab Anti-Discrim. important most and delicate of the ‘[o]ne (1999)). 142 L.Ed.2d 940 relationships ... has to of all international such cases The Mirmehdi court asserts just rights protection do with the foreign- “often involve ‘the disclosure of nationals when those na- country’s a own ” policy objectives foreign-intelli- and ... country.’ in another Id. tionals are Reno, gence products.’” (quoting Id. (alteration original) (quoting 2498-99 936). 490,119 nothing But Davidowitz, Hines v. (1941)).13 this case bears out that assertion. To This 85 L.Ed. 581 accept require to aliens’ that conclusion would us to strong national commitment Sergio's alienage his conduct does raise 12. We note that does not course of official hesitation, counseling special factor hesi- special counseling amount to a we concerns recognized previously tation. Our circuit has hold that these concerns are coextensive with damages may to a that an alien be entitled protections Speech afforded remedy against See Mar- federal officers. Clause.''). goes Debate The same for extra- tinez-Aguero, & n. 1 459 F.3d at 621-22 territoriality. Having already concluded alien); (recognizing remedy a for an Bivens right applies extraterritorially, we think it Vance, (rejecting see also F.3d at 203 improper injury is to treat the location of the factor). alienage special The reason for as counting against a extension of the as factor position alienage a this is clear: to treat as remedy. special providing damages for not a factor remedy would be to double count our reasons Although Supreme Court was not having providing right: for not a substantive upon whether these same called to decide bring entitled to a settled are interests also extend to aliens outside the process claim for substantive due under the who are under the control of United States though Fifth Amendment even Hernandez States, we U.S. officers within the United alien, was an we see no additional reason to principle think the would be no different. remedy right. granting for that hesitate protection The same concern for Davis, See 442 U.S. at 99 S.Ct. 2264 rights applies equal of aliens with force here. ("[A]lthough against Congressman a suit putatively unconstitutional actions taken in law, 708; Wilkie, in prior our case which we see 551 U.S. at abandon S.Ct. proceed (“defining Bivens actions to a permitted have workable cause of action” factor). Mar- immigration may officers. See a against special Relatedly, be we 621-25; Lynch, tinez-Aguero, 459 F.3d “deluge” potential foresee no of claimants at 1374. find no reason for We availing particular themselves of this Bi- immigration special Davis, officers solici- giving vens action. See U.S. at tude now. (rejecting argument imply- that ing deluge Bivens action would cause a fact, presents this case a scenario claims). The standards for extraterritorial in as the unlike that Bivens. Just Seventh application right of the constitutional extending a Bivens explained Circuit right the substantive definition of that are under remedy alleged Brady for violations stringent so that the creation of a damages Clause, a reme providing the Due Process remedy already will limit the size of dy gross physical by a claim of abuse a potential class of claimants under this Bi- presents law enforcement officer federal vens action. judicial great problem “no interference enforcement, certain with the work law Therefore, we extend Bivens action ly no than Fourth Amendment greater specific this context which an individual Engel, claim in Bivens.” See 710 F.3d at right located abroad asserts a free be Malesko, 75, 122 708; 534 U.S. at cf. gross physical from under the Fifth abuse (Scalia, J., that concurring) (arguing against Amendment federal law enforce- Supreme should to extend cease agents ment located in the United States beyond “precise actions circum

Bivens conscience-shocking, based on their exces- involved”). that In Bi [Bivens] stances sive use of force across our nation’s bor- vens, plaintiff brought his lawsuit ders.14 agents federal for their warrant- apartment, search of his but also for less Qualified Immunity C. arresting the unreasonable use of force in that Fifth Having concluded Amend- him. See 403 U.S. 91 S.Ct. 1999 apply particular ment does this extra- (“[Bivens’s]) complaint asserted pro- territorial context and Bivens arrest and search were effected without a remedy, vides a we resume the familiar warrant, and that unreasonable force was immunity analysis, qualified beginning arrest; employed making fairly Appellants alleged with whether read, alleges it was as well the arrest right. Here, too, probable made without cause.” Appellants allege use of unreasonable right 1. Constitutional by agents. force federal differ ence is that —for the reasons stated Ap first address whether the We them above—the must avail sufficiently alleged a Fifth pellants have Fifth rather than selves Amendment court Amendment violation. The district the Fourth Amendment. pre determined that Graham v. Connor

Moreover, adju- Appellants’ cluded the Fifth Amendment legal “the standards for “apprehension Mesa’s dicating the claim are well established and claim because deadly use of force” amounted to a easily Engel, administrable.” 710 F.3d at military per- would be available where 14. We do not rule on whether a Bivens action action allegedly beyond had violated the individual’s will be available the scenario here. sonnel example, suggest right. For we do not that a Bivens 278 (2) (1) injury, an were actions caused under the Fourth analyzed to be

seizure above, to the need for grossly disproportionate al mentioned As Amendment. (3) circumstances, and requires action under the that Graham it is true though pursued to be malice rather than mere inspired force claims were most excessive rather than of zeal so that ly Amendment careless or unwise excess the Fourth under power substantive due official general more it amounted to an abuse of the under Petta, Fifth and Four of the 143 that shocks the conscience. process standard Amendments, not 902; Lewis, that rule is abso teenth F.3d at cf. that all con not hold police “does a (holding lute. Graham that state 118 S.Ct. 1708 relating physically to claims stitutional not violate the Fourteenth officer did conduct must arise government abusive of substantive due guarantee Amendment’s Eighth or Amend Fourth under either the in a process by causing person’s a death Lanier, States ments.” United “only chase because high-speed automobile 137 L.Ed.2d 272 n. to purpose a to cause harm unrelated the (1997). Instead, simply re “Graham object satisfy of arrest will the legitimate claim is cov if a constitutional quires that shocking to arbitrary element of conduct provision, by a specific ered conscience, necessary process the for due Amendment, Eighth such as the Fourth violation”); Salerno, 746, 107 481 U.S. at analyzed under the stan the claim must be that due (noting S.Ct. 2095 the substantive specific provision, to appropriate dard component of the Fifth Amend process due the rubric substantive not under “prevents government ment from en Petta, Id.; see also process.” in the con gaging conduct shocks rejected that Graham (explaining (citations quotation and internal science” in process “only standard due substantive omitted)). “[0]nly egre marks the most alleged excessive use of in which the cases can to be gious official conduct be said ” a specific right violated arguably force ‘arbitrary the constitutional sense’.... Rights”). Bill under protected Lewis, 523 U.S. at 118 S.Ct. 1708 analysis is there process due “Substantive (quoting Heights, Collins v. Harker only if in this case inappropriate [the fore 117 L.Ed.2d by’ is ‘covered Appellants’] claim (1992)). Cnty. See Sacra Fourth Amendment.” But if ever a case could be said Lewis, 833, 843, 118 mento v. present power an official abuse of so arbi (1998). 1708, 140 L.Ed.2d conscience, trary Ap as to shock the of the Fourth inapplicability alleged According it here. pellants case establishes that Amendment this Appellants’ complaint, Hernandez had by” claim is not “covered Appellants’ pillars bridge retreated behind the of a Thus, Amendment. Graham Fourth when, unprovoked, Agent Mesa fired two Appellants from preclude as does gun gunshots his direction. One claim under the Fifth Amend serting their him in the face and killed him. shots struck Additionally, alleged the facts ment. facts, Agent Mesa had no reason On these proven, if would be suffi complaint, suspect that Hernandez had committed a Fifth Amendment vio cient to establish any engaged crime or conduct lation. any, let justify would the use of alone justifica deadly, apparent force. no To state a valid claim for a With action, trier of tion for this a reasonable process, violation due of substantive Mesa “act- fact could conclude that plaintiff must establish that the officer’s 194, 198, conscience-shocking malice or 125 S.Ct. ed out of L.Ed.2d 583 merely (2004) curiam). careless or rather than Thus, relevant, wantonness (per “[t]he Petto, zeal.” 143 F.3d at 902-03. excessive dispositive inquiry in determining whether Appellants conclude that the We therefore clearly a right is established is whether it prong quali- first of the have satisfied the would be clear to a reasonable officer that immunity analysis adequately fied al- his conduct was unlawful the situation leging a constitutional violation. Katz, he confronted.” Saucier v. 533 U.S. 121 S.Ct. L.Ed.2d Clearly D. Established Law (2001). Finally, we must determine rights “clearly Hernandez’s were whether No reasonable officer would have at the time of the incident. established” Agent alleged understood Mesa’s conduct Mesa, not, they According Agent to were wrongfulness to be lawful. The obvious uncertainty because the the law sur alleged conduct prece but also our availability of constitutional rounding the concerning rights dents of aliens con rights any right abroad ensured that we above, firm this conclusion. As mentioned recognize could not have been clear might already recognized we have that aliens in ly shooting. established at the time of the side our border are entitled “to be free of however, argument, This misconstrues gross physical abuse at the hands of state qualified immunity “Clearly doctrine. es officials.” Lynch, federal 810 F.2d at tablished” this context does not refer to 1374; Martinez-Aguero, see also Hernandez, specifically, whether had {“Lynch plainly at 626-27 on confers aliens clearly right established to invoke Fifth disputes a agents right with border protection at the time of the Amendment force, be free from excessive and no rea “objec incident. It refers instead to the proper sonable officer would believe it legal Agent tive reasonableness” of Mesa’s provoca beat a defenseless alien without action, light legal “assessed in rules tion, Martinez-Aguero alleges.”). as ‘clearly that were established’ at the time Creighton,

it was taken.” Anderson v. argues alleged Mesa that his con- 97 L.Ed.2d acceptable long impact duct was as as its (1987) (citing Fitzgerald, Harlow v. was felt outside our This is not a borders. 800, 818-19, 457 U.S. misapprehension reasonable of the law en- (1982)). words, qual L.Ed.2d 396 In other immunity. titled to It does not take a immunity ified does not shield conduct that ruling court for an official to know that no merely is known to be unlawful because it concept justify could reasonableness unclear that unlawful can is such conduct unprovoked shooting person. of another is, challenged. right That be whether the Pelzer, 730, 741, 745, Hope See extraterritorially applied to Hernandez (2002) 153 L.Ed.2d 666 and thus whether Hernandez could assert fundamentally (noting involving that cases right the Fourth or Fifth Amendment does necessary” finding similar facts “are not not alter the standard for conduct under right clearly holding established rights. “Qualified immunity those shields cruelty offi- [prison “obvious inherent an officer from she suit when makes practice provided should have re- cial’s] that, constitutionally decision even if defi alleged with notice that their spondents cient, reasonably misapprehends” the law pro- constitutional Hope’s conduct violated governing the “circumstances she con tection.”). hold that the Haugen, Accordingly, fronted.” Brosseau v. we failed to establish that either pellants have Appellants defeat alleged by facts personally responsible for immunity. supervisor was qualified claim Agent Mesa’s violations. But alleged THE that the can AGAINST because we hold VI. CLAIMS claim assert a Fifth Amendment SUPERVISORS they alleged Agent Mesa and that the constitu Finally, we address im- qualified facts to overcome sufficient Agent super Mesa’s against tional claims in judgment munity, we REVERSE liability inap is vicarious visors. “Because Mesa and REMAND for Agent favor of suits, plaintiff ... a to Bivens plicable this proceedings consistent with further plead that each Government-official must opinion. defendant, own indi through the official’s actions, the Constitu has violated vidual DENNIS, Judge, JAMES L. Circuit 662, 676, Iqbal, v. tion.” Ashcroft concurring part concurring in the (2009). 1937, 868 173 L.Ed.2d 129 S.Ct. judgment: allege supervisors that the they inad policies knew were promulgated entirety join opinion I the court’s its deadly the use of force equate regarding IV, I except agree for Part with which regarding officers and also failed to train in result. States v. part and of their firearms. As appropriate use 259, 110 Verdugo-Urquidez, 494 U.S. noted, however, neither the district court (1990), 1056, 222 Supreme 108 L.Ed.2d remaining supervisors was shown to of the that apparently phrase ruled in the al any personal have involvement in the Fourth Amendment people” “the Specifically, violation. leged constitutional persons part “refers to a class of who are Agent the district court found that Corde community oth of a national or who have supervisor for ro “had not served as line sufficient connection with developed erwise position Mesa’s since agents Agent community part to be considered this years before the incident— 2006”—four community.” 110 S.Ct. Id. eight and that it had been at least months however, agree, I am inclined Manjarrez supervised had since suggested with those who Appellants do not chal Agent Mesa. The squared cannot Verdugo-Urquidez view be point specif to no lenge findings these holding later in Boume with Court’s any ic evidence that would policy nor other Bush, v. 553 diene person were suggest supervisors that the (2008), “ques 171 41 L.Ed.2d ally alleged constitu responsible for objec extraterritoriality tions of turn on Under these circum tional violation. factors, concerns, practical tive stances, properly granted the district court 2229; 764,128 formalism.” Id. see summary judgment supervi in favor of the Wayne 2 al., et R. LaFave CRim. PRoc. sors. 3.1(i) (3d ed.2014) § (citing n. 237.1 Gerald Neuman, L. The Extraterritorial Constitu VII. CONCLUSION Bush, tion 82 S. Cal. Boumediene After 259, 259, (2008); 272 Ellen Pod- Because States has not S. the United L.Rev. to the Side sovereign immunity any gor, waived Welcome Other it, Meaningless Tracks: A Exclu claims asserted we AFFIRM Railroad Rule, sionary Int’l L. 310 judgment in favor of the United States. Sw. J. (2010)); Azmy, Executive Deten Similarly, judgment we Baher AFFIRM tion, Boumediene, and the New Common supervisors Ap- favor of the because the Habeas, heart, plicable in this case. At its Law this L.Rev. Iowa Burnett, (2010); Duffy A Conve- Christina determination is based on the dubious as- Extraterritoriality nient Constitution? sessment that there is an undefined area Boumediene, L.Rev. Colum. on the Mexican side of After the U.S.-Mexico (2009); Zick, Timothy Territoriality border analogous which is to the United Speech First Amendment: Free and the States Naval Station at Bay, Guantanamo Borders, Beyond at —and 85 Notre —Our Cuba. (2010). 1543,1614 Dame L.Rev. presence The United States’ at Guanta- government The Mexican has indicated Cuba, Bay, namo is on based both lease adjudication that our of the Appellants’ Bush, treaty. and a Boumediene v. claims, Fifth whether under the Fourth or 171 L.Ed.2d Amendment, in particular this case would (2008). Furthermore, “the United sovereign not cause friction with its complete States ‘has maintained and unin- However, appears interests. it that our terrupted Bay] control of [Guantanamo judicial entanglement with extraterritorial years.’” Majority over 100 Op. at 269 Fourth Amendment excessive-force claims Boumediene, (quoting likely imprac- would be far more to involve 553 U.S. at 2229). ticable and anomalous factors than would a S.Ct. The same cannot be said of the conscience” Fifth “shocks Amendment the Mexican reject side the border. I reasons, For I agree claim. these with the proposition that occasional exercises of opinion declining apply of the court border,” power “hard across the id. at “ in adjudicating the Fourth Amendment practices as ‘preinspection’ such ex- I Appellants’ claims but do so out of con- inspection amination and of passengers,” pragmatic political questions cern for id. at have somehow a transformed than on a rather formal classification of portion anything of northern Mexico into litigants involved. resembling the Naval Station at Guantana- If Bay. mo the fact that the “United States DeMOSS, JR., R. HAROLD Circuit powerful exerts and has exerted influence Judge, concurring part dissenting (internal Mexico,” quota- over northern id. part: omitted), justifies tion marks and citation I, II, join I in Parts and VI of the court’s application of the Fifth Amendment in a I concur in opinion and the result of Part border, strip along is how wide below, IV. For the reasons stated I dissent strip? applicable Is the Fifth Amendment from Part V. in all of Ciudad Juarez or even the entire Ultimately, state of the ma- Chihuahua? majority recognizes that “it is un- jority’s approach devolves into a line draw- disputed that Hernandez was a Mexican entirely unnecessary citizen with no connection to the United ing game which is Majority Op. States.” at 268. Additional- a because there is border between ly, majority “[a]ny states claim ... [is] United States and Mexico. injury on an foreign

based suffered clear, majority’s opinion rep- To be country!,]” place majority id. expansion of Fifth significant resents a acknowledges “the United States has no protections sup- Amendment which is not sovereignty.” formal control or de facto I am ported by precedent. per- Because Nevertheless, majority Id. at 270. de- Fifth Fifth Amendment does not ap- termined Amendment is suaded that the Fifth Mesa on the no connections favor of with protect a non-citizen claim. Amendment inju- an who suffered to the States States has where the United ry in Mexico sovereignty, I de facto

no formal control or judgment affirm the district court’s

would

Case Details

Case Name: Jesus Hernandez v. USA

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 30, 2014

Citation: 757 F.3d 249

Docket Number: 11-50792, 12-50217, 12-50301

Court Abbreviation: 5th Cir.