CA5 en banc: Border Patrol agent’s shooting of unarmed teenager across border gets qualified immunity

On en banc review, the panel decision is reinstated. The U.S. government has sovereign immunity for the shooting death of an armed Mexican teenager standing in Mexico shot from the U.S. at Ciudad Juarez, across the border from El Paso. Any right is found in the Fourth Amendment, not the Fifth. The officer who pulled the trigger gets qualified immunity because any right was not clearly established in 2010. Hernandez v. United States, 2015 U.S. App. LEXIS 6825 (5th Cir. April 24, 2015):

We rehear this matter en banc, see Hernandez v. United States, 771 F.3d 818 (5th Cir. 2014) (per curiam) (on petitions for rehearing en banc), to resolve whether, under facts unique to this or any other circuit, the individual defendants in these consolidated appeals are entitled to qualified immunity. Unanimously concluding that the plaintiffs fail to allege a violation of the Fourth Amendment, and that the Fifth Amendment right asserted by the plaintiffs was not clearly established at the time of the complained-of incident, we affirm the judgment of dismissal.

The facts and course of proceedings are accurately set forth in the panel majority opinion of Judge Prado, Hernandez v. United States, 757 F.3d 249, 255-57 (5th Cir. 2014). We conclude that the panel opinion rightly affirms the dismissal of Hernandez’s claims against the United States, id. at 257–59, and against Agent Mesa’s supervisors, id. at 280, and we therefore REINSTATE Parts I, II, and VI of that opinion. We additionally hold that pursuant to United States v. Verdugo–Urquidez, 494 U.S. 259 (1990), Hernandez, a Mexican citizen who had no “significant voluntary connection” to the United States, id. at 271, and who was on Mexican soil at the time he was shot, cannot assert a claim under the Fourth Amendment.

The remaining issue for the en banc court is properly described as whether “the Fifth Amendment … protect[s] a non-citizen with no connections to the United States who suffered an injury in Mexico where the United States has no formal control or de facto sovereignty.” Id. at 281-82 (DeMoss, J., concurring in part and dissenting in part). To underscore the seriousness of the tragic incident under review, we elaborate on that description only to note that the injury was the death of a teenaged Mexican national from a gunshot fired by a Border Patrol agent standing on U.S. soil.

. . .

Although the en banc court is somewhat divided on the question of whether Agent Mesa’s conduct violated the Fifth Amendment, the court, with the benefit of further consideration and en banc supplemental briefing and oral argument, is unanimous in concluding that any properly asserted right was not clearly established to the extent the law requires.

. . .

EDITH H. JONES, Circuit Judge, joined by SMITH, CLEMENT, and OWEN, Circuit Judges, concurring:

The court has unfortunately taken the path of least resistance. We hold unanimously that Agent Mesa has qualified immunity from this suit for a Fifth Amendment substantive due process violation because he did not violate any clearly established rights flowing from that Amendment. Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 818 (2009). This compromise simply delays the day of reckoning until another appellate panel revisits non-citizen tort claims for excessive force resting on extraterritorial application of the United States Constitution. Ongoing incursions across our national borders and our nation’s applications of force abroad ensure that other lawsuits will be pursued. We should discourage this litigation before it takes root.