At a recent oral argument, Justice Elena Kagan described the U.S.-Mexico border as a jurisdictional “no-man’s land.” The Supreme Court confronted those jurisdictional limits in Hernández v. Mesa, a case arising from the fatal shooting of a Mexican teenager (Sergio Hernández) by a U.S. border patrol agent; the American officer shot from a position in the United States and wounded Hernández at a location across the border in Mexico.
Hernández’s family sued the border patrol agent and his supervisors, alleging violations of the Fourth and Fifth Amendments in the use of deadly force. The defendants moved to dismiss on the basis that U.S. constitutional protections do not extend to Hernández, who was in Mexico when he was shot. A federal district court agreed with the defendants. The U.S. Court of Appeals for the Fifth Circuit concluded that the border patrol agent was entitled to qualified immunity on the Fifth Amendment claim because he did not violate any clearly established rights, and Hernández’s family cannot assert a Fourth Amendment claim because he was a Mexican citizen without a significant voluntary connection to the United States.
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