Hernandez v. Mesa: A Primer

On Tuesday, October 11, 2016, the Supreme Court granted cert to Hernandez v. Mesa, a case coming out of the Fifth Circuit. This case could literally change the reach of the 4th Amendment, which helps to explain the reactions of 4th Amendment scholars. However, on first reading, it is not obvious what makes this case special or even what it is about. What is a formalist approach to extraterritoriality and how does it differ from a functionalist approach? What is qualified immunity? What’s a Bivens?

I’m writing this post (the first in a series examining all aspects of this case) to try to answer these questions and more. Hernandez is a tremendously important case that at its root is about the scope of governmental power. Whom does the Constitution protect? What lives do we see as worthy of being protected by the Constitution? When an agent of the government acts, what kind of liability should he be exposed to if he was wrong? In an election year dominated by demonization of immigrants, especially Mexican immigrants, this case reminds us what the cost of maintaining an armed presence on the border is for those who live on the other side.

Yet, Hernandez also has the potential to reach beyond just the physical realm. Does the Fourth Amendment extend to the Internet, and if so, how far? Does it only protect the data of Americans stored on American servers or does it also protect the data of non-citizens who may never have stepped inside of the United States?

Hernandez is thus a vehicle for not just giving justice to the family of a dead teenager, but also a way to see how the law shapes politics and vice versa. Hernandez also represents perhaps one of the final chances for Justice Kennedy to be the key swing vote and for him to finalize a project he began over 20 years ago to determine the application of the Constitution outside of the territory of the United States.

In sum, this case is a big deal and worthy of being closely followed. It will impact foreign relations, the border, the Internet, and more. What more could you want from a Supreme Court case, outside of justice?


Hernandez came about from the death of Sergio Hernandez on June 7, 2010. Sergio Hernandez was a 15 year old Mexican boy who lived in Juarez, right on the border with El Paso. A popular game with children his age involved playing in a culvert near the Paso del Norte Bridge that separates El Paso from Juarez, representing the transition from U.S. sovereignty to Mexican sovereignty. The game consisted of running up the incline of the culvert to touch the border fence and then running back down. For reasons that remain unclear, a U.S. Border Patrol agent, Jesus Mesa, Jr., interrupted the game and detained one of Hernandez’s friends. Mesa maintains that the children were part of a group trying to cross into the United States, while Hernandez’s family insists it was just a group of children playing a game that was well-known to the Border Patrol.

What happened next also remains controversial. When Mesa detained Hernandez’s friend, the children retreated behind a pillar of the bridge and began to throw rocks at Mesa. Mesa has claimed he felt in danger of his life, while other witnesses have claimed he was in no danger. Mesa, who was standing on American territory, reacted by firing at least two shots that struck and killed Sergio.

The FBI investigated and found Mesa’s shooting to not violate any policies.

Such a situation is not unusual on the border. The New York Times recently published a piece examining a similar situation that ended with the death of José Antonio Elena Rodríguez, a 16-year-old citizen of Mexico. In that case, a Border Patrol agent fired upon suspected drug traffickers who were attempting to climb the border fence to go back to Mexico. His shots missed them and hit Rodríguez in the back, killing him. Although the Border Patrol officials claimed initially that Rodríguez had been throwing rocks at the agent, the claim fell apart as the physical geography of the site of the incident and video footage rendered such a claim unbelievable. Yet, again, an investigation into the shooting resulted in no punishment for the agent. It wasn’t until a federal district court judge in Arizona allowed Rodriguez’s family’s civil lawsuit to proceed that the agent, Lonnie Ray Swartz, was indicted for second-degree murder.

These kinds of shootings have happened with increasing frequency on the border. The Border Patrol is an agency that after 9/11 has transformed into a paramilitary organization that views itself as the defender’s of the American homeland. At the same time, it has increasingly isolated itself from any oversight. Combining a belief that one is acting to protect one’s country with little oversight rarely leads to positive results. Due to legal precedents that will be discussed in the next post, victims of these shootings and their families often have little recourse in American courts. Meanwhile, Mexican courts, if they exercise jurisdiction, are often unable to enforce their judgments against American agents who do not have assets in Mexico and refuse to partake in the Mexican court proceedings.

These incidents often receive little coverage in the United States, but have led to an increasing amount of controversy in Mexico. Mexican citizens see it as a violation of Mexican sovereignty and an affront to justice that American Border Patrol agents are able to kill Mexican citizens but suffer no consequences, not even a reprimand from the Border Patrol. It is inconceivable that the American public would allow a Mexican agent to kill an American citizen and not face charges in an American court.

This issue has become so heated in Mexico that the Mexican government has taken the unusual step of filing amicus curiae briefs at multiple stages of the litigation in both the Hernandez and Rodriguez cases. An amicus curiae brief is a filing from a party that is neither the plaintiff nor the defendant in a case. Such briefs are often filed by interested parties who want to present an additional view of the law or a case’s importance to the court. However, it is unusual (although occurring more often at the Supreme Court level of litigation) for a foreign government to file an amicus curiae brief, as foreign governments normally handle such disputes through diplomatic channels.

I want to stop here to emphasize what happened. Too often, with cases like this that bring up important legal issues, it is easy to lose sight of the facts that gave rise to the case. A 15-year-old Mexican teenager was killed by an American Border Patrol agent after a game went horribly wrong. He died separated from his family. To this day, when his mother is asked how many children she has, she responds “There were seven.”

This myopic focus on the legal issues and the ignorance of the context of the case is endemic in the legal world. I had the privilege of going to law school and learning about the development of the law. For non-lawyers, the law in law schools is taught via the case method. In the case method, a professor writes a textbook that takes extracts from various cases to show the general principles behind a body of law. For instance, in criminal procedure law, major cases such as Terry v. Ohio or Miranda v. Arizona are excerpted to show how stop-and-frisk and the Miranda warnings were created. The idea is that by reading cases, law students will learn to understand the evolution of the law, grasp how judges think, and understand how to extract legal principles from a case.

However, a drawback of this method is that it has limited context and loses sight of the people who make up the case. In many cases, the facts are often cut down to the bare necessities to grasp who the parties are and what the controversy is, but little more is given. We weren’t taught anything about John W. Terry beyond the fact that he acted suspiciously, leading to a police officer frisking him. We know more about Ernesto Miranda, but that’s because his name has become synonymous with a warning given on every cop show on television. However, absent the dedicated work of individual professors, it is often easy to forget that real people lived these cases and their lives were impacted by these decisions.

In the next post, I’ll write about the legal precedents and questions that make this case complex. However, for now, I want to end with the person who deserve to be the center of this case: Sergio Hernandez. He was killed by an American Border Patrol Agent and now his family is seeking justice at the highest court in the United States.

Sergio Hernandez Source:http://www.dailymail.co.uk/news/article-1285302/Mexico-demands-investigation-U-S-border-agent-shoots-teenager-dead--throwing-stones-him.html


Nate Blakeslee, Who Will Watch the Watchers?, Texas Monthly, http://www.texasmonthly.com/politics/who-will-watch-the-watchers/

Mark Binelli, 10 Shots Across the Border, New York Times, http://www.nytimes.com/2016/03/06/magazine/10-shots-across-the-border.html

Courtney Humphries, New Harvard Law School program aims for ‘systemic justice’, Boston Globe, https://www.bostonglobe.com/ideas/2015/02/06/new-harvard-law-school-program-aims-for-systemic-justice/PeGBqIenWhqqCuJ37Y20kJ/story.html

Hernandez v. Mesa Docket, http://www.scotusblog.com/case-files/cases/hernandez-v-mesa/

Christopher Sherman & Olivia Torres, Mexico Teen Killed by Border Patrol, Anger High, Scranton Times Tribune, http://thetimes-tribune.com/news/mexico-teen-killed-by-us-border-patrol-anger-high-1.836769

Steve Inskeep, After Shootings, Extended Silence: What The Border Patrol Hasn’t Said, http://www.npr.org/2014/06/09/320220093/foi-request-sheds-some-light-on-border-patrol-shootings

Force at the Border, Arizona Central, http://archive.azcentral.com/news/immigration/border/