Tuesday, November 3, 2015
(1) Whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment's prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States; and
(2) 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.
The family of a Mexican teenager fatally shot in Mexico by an American border patrol officer standing across the U.S. border is urging the U.S. Supreme Court to review a Fifth Circuit decision holding that the agent had qualified immunity and could not be sued. The case involves, as this National Law Journal article (subscription required) puts it, "a politically sensitive challenge that involves a U.S. Border Patrol agent's shooting of a 15-year-old Mexican boy on Mexican soil." Law 360 also provides background about the case.
In a per curiam en banc opinion, the Fifth Circuit held that
"We rehear this matter en banc . . . to resolve whether, under facts unique to this or any other circuit, the individual defen-dants 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 case arises at a time of much concern over the alleged abuses of force by Border Patrol (and here) in enforcement operations along the U.S./Mexico border and much public support for increased border enforcement.