Supreme Court Shots Fired Does a foreigner on foreign soil have Fourth Amendment rights?
https://www.wsj.com/articles/supreme-court-shots-fired-1487723645
The Supreme Court heard oral arguments Tuesday in a case that could decide whether foreign nationals outside the U.S. are entitled to constitutional protections. Such a ruling would unleash fresh opportunities for lawsuits against everything from drone strikes to interrogation, and the good news is that the Justices seemed skeptical of upending decades of settled law.
Hernandez v. Mesa started with a 2010 fatal shooting: A U.S. federal agent fired on Mexican teenager Sergio Hernandez-Guereca from across the border. The boy’s parents say their son was playing with friends, though Justice Department records revealed that Hernandez had twice been arrested for smuggling aliens into the U.S. Prosecutors concluded there was insufficient evidence to indict the agent.
Yet the parents filed a lawsuit, and one question before the High Court is whether Hernandez, a Mexican citizen shot on Mexican soil, is entitled to Fourth Amendment protection against the unjustified use of lethal force. The plaintiffs say the Court should consider the “totality” of the circumstances, including that Ciudad Juarez, Mexico and El Paso, Texas are one metropolitan community.
The plaintiffs rely on Boumediene v. Bush, the 2008 case in which a 5-4 majority ruled that enemy combatants detained at Guantanamo Bay have the constitutional right of habeas corpus. The plaintiffs know that Justice Anthony Kennedy wrote that opinion, and they are hoping he will expand the logic of Boumediene to open a new area of rights for foreigners. Thus they embrace the “functionalist” approach in that ruling in which the Justices look at more than merely where the conduct occurred.
But Boumediene turned on the reality that the U.S. has “complete and total control” over Guantanamo. In “every practical sense,” Justice Kennedy wrote, “Guantanamo is not abroad.” That’s not true of the sovereign nation of Mexico, and it’s hard to find a clearer dividing line of jurisdiction than the U.S.-Mexico border.
The better precedent is U.S. v. Verdugo-Urquidez, which held in 1990 that Fourth Amendment protections don’t apply to searches and seizures of aliens in foreign countries without a “significant voluntary connection” to the U.S. Applying the Fourth Amendment across the globe, the Court said in Verdugo, would “significantly disrupt the ability of the political branches to respond to foreign situations involving our national interest.”
That’s for sure. If foreigners on foreign soil can sue for unjust use of force, lawyers will soon be looking to file lawsuits on behalf of the victims of drone strikes in Pakistan or special-forces attacks in Yemen.
The plaintiffs claim they seek only a narrow ruling, one that Chief Justice John Roberts noted wryly was “a test that, surprisingly, fits the exact facts of your case.” But even that would be open to judicial interpretation, and many judges would gladly accept the invitation to wade into controversial national-security policy questions that under the Constitution belong to the President and Congress.
The Supreme Court added another question when it agreed to hear the case: Whether the plaintiffs can make claims under Bivens v. Six Unknown Fed. Narcotics Agents, which allowed parties to seek damages when federal officers allegedly violate certain constitutional rights. Yet the Court has blessed such claims only in specific instances and has declined to expand remedies when Congress won’t.
Justice Kennedy said Tuesday it would be “an extraordinary case” to say there’s a Bivens action “in light of what we’ve done since 1988 where we haven’t created a single one,” and we’re glad to hear it. But then Justice Kennedy has rarely been shy about asserting judicial supremacy on rights jurisprudence. Perhaps he’ll be restrained here by Justices Stephen Breyer and Elena Kagan, who also seemed doubtful of the petitioners’ claims.
Comments are closed.
