A Border Patrol agent in El Paso shot and killed a young man in Mexico who was playing with his friend, running down and touching the border fence and running back. The friend was lucky and captured; Hernandez was shot in the face without ever setting foot in the U.S. His estate sued the government and the shooter. The Fifth Circuit concludes that there is no extraterritorial Fourth Amendment Bivens claim, but there is a Fifth Amendment due process claim for the shooting. The FTCA and other claims are denied as well. Hernandez v. United States, 2014 U.S. App. LEXIS 12307 (5th Cir. June 30, 2014):
Finally, we address the practical obstacles and other functional considerations extraterritorial application would present. We recognized some of the practical concerns already: the national interest in self-protection; the constant need for surveillance, often with advanced technologies; and concerns over varying degrees of reasonableness depending on an agent’s location at any given time. While these practical concerns counsel against the Fourth Amendment’s application, they do not carry the same weight in the Fifth Amendment context because different standards govern the respective claims.
The Fourth Amendment protects against unreasonable searches and seizures, while, in this context, the Fifth Amendment protects against arbitrary conduct that shocks the conscience. The level of egregiousness required to satisfy the latter standard militates against protecting conduct that reaches it. We abstained from placing Fourth Amendment limits on actions across the border in part to allow officials to preserve our national interest in self-protection. A reasonableness limitation would have injected uncertainty into the government’s decision-making process, perhaps resulting in adverse consequences for U.S. actions abroad. That interest, however, plays no role in determining whether an alien is entitled to protection against arbitrary, conscience-shocking conduct across the border. This principle protecting individuals from arbitrary conduct is consistent with those our government has recognized internationally,10 and applying it here would hardly cause friction with the host government. The Mexican government submitted a brief seeking to “allay any concerns that … a ruling in the plaintiffs’ favor would interfere with Mexico’s sovereignty or otherwise create practical difficulties.” Br. of Gov’t of the United Mexican States as Amici Curiae in Support of Appellants 3.