The Fourth Amendment offers a powerful bulwark against the state’s power to deprive people of their liberty. Only with the intercession of a neutral arbiter, the text indicates, can the government exercise its immense coercive powers. Anyone who has followed the evolution of Fourth Amendment jurisprudence over the last three decades knows that this promise is far from the reality. Along the border, however, even the watered-down state in which the Fourth Amendment hobbles along might be too much.
Is it possible that a Border Patrol officer might have wielded his weapon too loosely, but the Fourth Amendment has no eyes for this conduct? Back in 2010, Sergio Adrián Hernández Güereca, a fifteen-year-old Mexican citizen living in Ciudad Juárez, and his friends decided to play a game in which they ran across the concrete culvert that stretches along the international boundary between Ciudad Juárez and El Paso. They had no interest in remaining in the United States. They were not armed. Instead, they simply ran across the culvert, touched the fence on the north side, and returned. That was too much for Jesús Mesa, a Border Patrol agent stationed along this stretch of the border that day. Mesa took out his gun, aimed in Sergio’s direction, and fired. He hit Sergio near his eye. Within seconds Sergio was dead and Agent Mesa (along with other Border Patrol officers nearby) got on their bicycles and left. Sergio, it turns out, was on Mexican territory when he was killed.
And that makes all the difference. Two years ago the U.S. Court of Appeals for the Fifth Circuit created a geographic space along the boundary with México in which the usual restraints don’t apply. As the court put it in Hernández v. United States, 785 F.3d 117 (5th Cir. 2015) (en banc), “Hernandez, a Mexican citizen who had no ‘significant voluntary connection’ to the United States and was on Mexican soil at the time he was shot, cannot assert a claim under the Fourth Amendment.” Video of that deadly encounter is below.
Less than three months later, the U.S. District Court for the District of Arizona took a different view. In Rodriguez v. Swartz, 111 F. Supp. 3d 1025 (D. Ariz. 2015), the court concluded that the Fourth Amendment did extend to a young man who was killed under much the same circumstances as Sergio —only in Nogales where the relevant appellate court is the Ninth Circuit. Moreover, the court concluded that the Border Patrol agent could not escape liability by calling on the qualified immunity doctrine. Id. at 1041.
Last week the Supreme Court decided to resolve this disagreement by granting certiorari in Hernández. The Court has not yet set a date for oral argument.