On February 21, 2017, the U.S. Supreme Court heard oral arguments in Hernández v. Mesa. In this case, a U.S. border patrol agent (Mesa) fired a bullet from the U.S. side of the U.S.-Mexican border, striking and killing an unarmed and nonthreatening 15-year old Mexican national, Sergio Hernández, while Hernández was in Mexico. At issue in this case: whether the protections against the unjustified use of deadly force by law enforcement under the Fourth Amendment can be extended extraterritorially to a cross-border killing of a non-U.S. citizen. Within the oral arguments of the petitioners (delivered by notable Texas plaintiff’s lawyer Robert C. Hilliard), the petitioners attempted to narrow the scope of the decision. As the court tried to examine the broad extraterritorial application of the Fourth Amendment, Mr. Hilliard tried to focus that application on the narrow set of circumstances of the case, discussing how the extraterritoriality should be mitigated by the shooting’s proximity to the border and the fact that the border agent’s actions all occurred in the United States, and how concerns raised about the legality of drone strikes could be sidestepped in this instance because this was an action taken by civilian border patrol agents and not by the military.
This narrow approach suggests that the court can and should apply or not apply individual parts of Fourth Amendment doctrine to non-citizens abroad depending on whether doing so would be “impracticable or anomalous,” as the petitioner’s brief states — essentially, leaving the courts to decide the applicability of the Fourth Amendment to non-citizens on a case-by-case basis. This approach has drawn criticism from those who wish to see a more formalist interpretation of the Fourth Amendment’s application to non-citizens. In 1990, the Supreme Court decided in United States v. Verdugo-Urquidez that the Fourth Amendment did not apply to searches of non-citizens; Fourth Amendment rights, in the view of the court, are created as part of a social contract between a citizen and the government. The petitioners’ approach would erase that bright line test, and institute a piecemeal approach rather than a new bright line test which would expand Fourth Amendment protections to non-citizens more broadly.
A full transcript of the oral arguments can be found here: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2016/15-118_3e04.pdf.