Mesa v. Hernandez: A Qualified Immunity Quandary

Qualified immunity cases, generally speaking, could not be more straightforward for state and local governments. No matter how bad the facts of the case, one legal analysis is better.
 
Mesa v. Hernandez provides a qualified immunity quandary. If Agent Mesa wins his qualified immunity claim, other government officials in the future may lose their qualified immunity claims.
 
United States Border Patrol Agent Jesus Mesa, Jr., shot and killed Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican national, who was standing on the Mexico side of the U.S./Mexico border. At the time of the shooting Agent Mesa didn't know that Hernandez was a Mexican citizen.
 
The question of most interest to state and local governments in Mesa v. Hernandez is whether qualified immunity may be granted or denied based on facts - such as the victim's legal status - unknown to the officer at the time of the incident.
 
State and local government officials can be sued for money damages in their individual capacity if they violate a person's constitutional rights. Qualified immunity protects government officials from such lawsuits where the law they violated isn't "clearly established."
 
The Fifth Circuit assumed Agent Mesa violated Hernandez's constitutional rights. The court granted him qualified immunity based on the fact that Hernandez was a Mexican citizen even though Agent Mesa didn't know that at the time of the shooting.
 
Hernandez points out that the Fifth Circuit's ruling contradicts the Ninth Circuit case of Moreno v. Baca (2005). The Ninth Circuit denied qualified immunity to officers who searched a parolee without reasonable suspicion without knowing he was a parolee (parolees have diminished Fourth Amendment rights).
 
Given the rapid pace of police work, it is not unusual for officers to learn a variety of information after they have used force, which supports their qualified immunity claim (i.e. the person they shot had a gun, had threatened another officer or citizen, etc.). Considering this kind of after-the-fact information in the qualified immunity analysis would be favorable to officers.
 
But the question in this case is whether qualified immunity may be granted or denied based on facts discovered later. In some cases officers may learn after-the-fact information that undermines their claim for qualified immunity (i.e. the person they shot stated he had a weapon but did not, had been mistakenly perceived to have threatened another officer or citizen, etc.). Considering this kind of after-the-fact information in the qualified immunity analysis would be unfavorable to officers.
 
A second question this case raises is whether Hernandez has a Fourth Amendment right to be free from excessive force even though he was a Mexican citizen shot on Mexican soil.
 
The Fifth Circuit relied on a 1990 Supreme Court case United States v. Verdugo-Urquidez to reach the conclusion Hernandez has no such right. In his certiorari petition Hernandez argues the Supreme Court should rely on the more recent Boumediene v. Bush (2008). In this case the Supreme Court "held that 'de jure sovereignty' is not and has never been 'the only relevant consideration in determining the geographic reach of the Constitution' because 'questions of extraterritoriality turn on objective factors and practical concerns, not formalism.'"

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