The Supreme Court on Tuesday is taking up a case that presents a critical question of law: Can a U.S. law enforcement officer be sued in American courts for the death of a foreigner outside the United States?
For most of American history, the answer to that question has been a clear and emphatic “no.” Courts for two centuries have held that constitutional rights do not apply to foreigners with no voluntary connection to the United States.
That the high court even agreed to take Hernández v. Mesa casts doubt on that long-held understanding of the law, however.
“That has been under a lot of pressure and challenge recently,” Fordham University School of Law professor Andrew Kent told reporters on a conference call last week.
The Supreme Court opened the door to a possible revision with a 2008 ruling that held that prisoners at the Guantanamo Bay, Cuba, detention facility had a right to petition the U.S. courts even though Gitmo is on foreign soil and the detainees were foreigners who never even had been to the United States.
Attorneys for the family of Sergio Hernández quote liberally from that case, Boumediene v. Bush, in their written legal arguments.
U.S. Border Patrol agents worry a decision in favor of the plaintiffs would make it harder for them to do their jobs, and legal scholars speculate that it could — depending on how expansive the language in the opinion is — impact immigration more generally.
The facts of the case are unusual — and in dispute. The plaintiffs contend that Hernández, who was 15 at the time in 2010, was playing a game with some friends that involved running up to a fence at the top of an embankment in front of a culvert that separates Mexico from the United States between El Paso, Texas, and Ciudad Juárez.
A Rock-Throwing Smuggler
Attorneys for the Border Patrol officer, Jesus Mesa Jr., allege that Hernández was a smuggler who twice had been arrested in the United States but allowed to return to Mexico because of his age.
While Mesa was detaining one of the youths, according to defense lawyers, Hernández ran back to the Mexican side of the border and hurled rocks at him. What is not in dispute is that Mesa fired across the border, killing Hernández.
The District Court judge dismissed the ensuing lawsuit, and the 5th U.S. Circuit Court of Appeals in New Orleans upheld the decision. Attorneys for the Hernández family argue that the case is similar to the situation in Boumediene. Like Gitmo, they argue, border officers exercise a level of control along the border that makes it effectively U.S. territory.
“If this Court were to side with the government, it would effectively turn the border into an on-off switch for fundamental constitutional protection,” they write in a court filing.
But Mesa’s attorneys argue that the border is not at all like the U.S. military base in Cuba. The dividing line between Mexico and the United States is fixed, they write.
“To hold otherwise would create extraterritorial jurisdictional jurisprudence based on subjective determinations on where to draw the line,” the brief states.
Both the defense attorneys and lawyers for the federal government cite a 1990 case, United States v. Verdugo-Urquidez, in which the high court ruled that the Fourth Amendment did not cover an accused Mexican drug dealer. In that case, Rene Martin Verdugo-Urquidez was in jail in the United States when Drug Enforcement Administration got permission from the Mexican government to search his home.
The court rejected the defendant’s challenge that his Fourth Amendment rights had been violated since DEA agents did not obtain a warrant.
Government lawyers ague in the Hernández v. Mesa case that the courts should defer to Congress about what rights foreigners have.
“The need for caution is reinforced by the fact that, in a variety of statutes, Congress has long taken care not to provide aliens injured abroad with the sort of judicial damages remedy petitioners seek,” the brief states.
Border Patrol Agents Watching
The government also agues that even if the Hernández did enjoy constitutional protections, Mesa is entitled to immunity because he was acting in his official capacity as a law enforcement officer.
Brandon Judd, president of the National Border Patrol Council, expressed confidence that Mesa will prevail. He praised the appellate court ruling.
“It seems pretty straightforward and pretty sound,” he said. “It’s the right decision. I don’t see how agents … could be held civilly liable for something that didn’t happen in our country.”
Upholding the lower court decision would “let our officers know they can continue to our jobs without fear of reprisal,” Judd added.
With the court currently divided 4-4 between more liberal and more conservative justices, a split decision would leave the appellate decision in effect. But Kent, the Fordham professor, noted that Kennedy wrote the majority opinion in the Guantanamo case. If he decides that precedent applies more broadly, a five-vote majority to overturn the lower court decision is possible.
A narrowly tailed opinion could limit the impact.
“That hasn’t been, in the past, how Justice Kennedy has done business,” Kent said, noting that the justice’s majority opinion in the Guantanamo case was open-ended.
Such an outcome in this case could open the door to further challenges, he said. Judicial second-guessing of the government’s decisions affecting foreigners is an issue in the legal battle over President Donald Trump’s travel ban. Kent said it also potentially could impact surveillance of foreigners by U.S. intelligence services.
“They could be pretty significant,” he said. “Justice Kennedy, as you probably know, sort of favors often kind of flowery, loose language. He’s a big believer in sort of the power of the federal courts decide any and all questions that come before it. And he tends to talk about these issue of where the Constitution applies in pretty vague ways that don’t give a lot of direction to executive branch in particular.”
5 thoughts on “Supremes to Decide if Foreigners Have Constitutional Rights”
I’n fairly confident that these three girls will make the right decision.
Diana has the tie breaking vote.
Please be aware that this “ruling” would be used to justify the murder of American Nationals, who, not being “citizens” of the CORPORATE US,. would be considered as “foreigners”. This is actually true, since American Nationals ARE “Foreign to the US” as regards the CORPORATION, but since the world is upside down, the true foreigners to our nation are the ones who view the actual people as the enemy, and persecute those who do not submit to their supposed “authoritae”.
Fundamental human rights are fundamental human rights. They apply to everyone, everywhere. At least that’s my view, just as it was the view of the Founders. “Inalienable rights” means exactly that. Human rights don’t vary with the patch of earth one is standing on. And since rights aren’t granted by governments (men), they don’t vary with the government one is associated with via citizenship.
This isn’t to say that US government personnel have any obligation to actively protect the rights of foreigners. They don’t. But US personnel DO have the obligation to passively respect the rights of foreigners; i.e., they have no right to act with aggression against people in other countries.
As for people in the US illegally, it doesn’t violate their rights to expel them, just as telling an intruder to get off my property doesn’t violate his rights. At the same time, I have no business capturing that intruder, tying him up, torturing him, making him my slave, etc. At most I have the right to force him off my land at gunpoint, and shoot him if he resists or poses a real threat. The amount of force I use against him can’t legitimately outweigh the harm he has deliberately done to MY rights. Justice means that no one’s rights are violated beyond the level of harm he has offered to the rights of others.
“For most of American history, the answer to that question has been a clear and emphatic “no.” Courts for two centuries have held that constitutional rights do not apply to foreigners with no voluntary connection to the United States.”
First, we have NO “constitutional rights”, what we have is natural rights that are PROTECTED by those who serve within our governments as found in writing within the US Constitution. WE did NOT get our rights from the US Constitution or from our state Constitution, we have them naturally.
If you watch the animal and vegetable kingdom one will notice certain things, they protect themselves.
Animals protect themselves and their young. That is the right of self defense. Some animals will pick up tools to use for that purpose, such as throwing things, etc. That is where the right to bear arms and to defend oneself with them comes from – nature. Our tools are just a bit more complex. Some animals use camouflage, shields such as shells, etc.
Plants also protect themselves. Some eat things, some poison things, some have thorns etc.
What the US Constitution and each state’s Constitution do is require those that serve within our governments to defend our natural rights and liberties. They are the mechanism by which certain things that benefit a mass of people are implemented, cared for, etc – when those who serve within our governments are doing their duties lawfully as written into the contract(s) they are under.
“The Supreme Court on Tuesday is taking up a case that presents a critical question of law.” “Can a U.S. law enforcement officer be sued in American courts for the death of a foreigner outside the United States?”
Article 3 says exactly what the duties of those who serve in the judicial branch are…
Section 2: “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;
–to all cases affecting ambassadors, other public ministers and consuls;
–to all cases of admiralty and maritime jurisdiction;
–to controversies to which the United States shall be a party;
–to controversies between two or more states;
–between a state and citizens of another state;
–between citizens of different states;
–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.”
We know the crimes must be tried in the state where this happened or “when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed” according to the supreme law. So it is the Congress that must make that decision of where the trial shall be held, not the supreme court.
An example of jurisdiction is used here “The Supreme Court opened the door to a possible revision with a 2008 ruling that held that prisoners at the Guantanamo Bay, Cuba, detention facility had a right to petition the U.S. courts even though Gitmo is on foreign soil and the detainees were foreigners who never even had been to the United States.?
It matters not if it is a US holding on foreign soil it is as if it is in the USA, the US Constitution is still the supreme LAW of this land so it is what is to be followed.
We know self defense is a natural right. Is it also the right of law enforcement? Yes, that is a job, and though there are many corrupt in those positions, if it is an honest defense of life – their own or others – then it is lawful.
So is it self defense would be the consideration that the JURY should be making – it is important to remember that here in America judges issue OPINIONS, but juries decide the lawfulness and guilt/innocence. “The trial of all crimes, except in cases of impeachment, shall be by jury per the US Constitution; “The trial of ALL crimes, except in cases of impeachment, shall be by jury;” is applicable here in this case. (caps on the word “all” are mine)
If it is decided that it was done in self defense then the agent’s actions are upheld to be lawful. But if it is not self defense then it is murder, and the degree of murder is what must be decided.
4th Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
“The court rejected the defendant’s challenge that his Fourth Amendment rights had been violated since DEA agents did not obtain a warrant.”
The crimes was in progress no warrant was needed, nor were the officers going to their home, so the 4th does not apply here.
“The government also argues that even if the Hernández did enjoy constitutional protections, Mesa is entitled to immunity because he was acting in his official capacity as a law enforcement officer.”
The US Constitution only mentions in writing three “immunities” for those that serve within our governments and that is NOT one of them. Article 1, Section 6, Clause 1: “… They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.”
The Declaration of Independence makes clear that there are no “immunities” provided under our laws for a person serving within a governmental position except for those provided for in the US Constitution.
Does anyone see any others that I am missing? There are NO OTHER IMMUNITIES that those that serve within our governments have, and if there are, they MUST be found within the US Constitution in writing as quoted above.
AS far as the rest, I do not know exactly what happened so cannot make a decision as far as the case goes, only what elements as written here are involved. It seems that the supremes are trying to use this case to go for power in another direction when it is an open and shut case of is it defense or not. We already have the laws in place to cover that.