Sunday, February 21, 2021

Immigration Article of the Day: The Right to Kill: How Congress Can Solve the Problem Presented in Hernandez V. Mesa by David Rice

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The Right to Kill: How Congress Can Solve the Problem Presented in Hernandez V. Mesa by David Rice

Abstract

Sergio Hernandez was shot and killed by a Border Patrol agent in 2010. At the time of the shooting, Hernandez was standing on the Mexican side of the border while the agent was standing in United States territory. The Supreme Court of the United States recently decided in Hernandez v. Mesa that it would not extend the Bivens doctrine to include cross-border shootings and allow the Hernandez family to bring a civil action against the Border Patrol agent. The Supreme Court argued that it was up to the political branches, specifically Congress, to address this issue of cross-border shootings. Due to this holding, Mexican citizens currently have no avenues to bring claims in the event of any future cross-border disputes against Border Patrol agents.

This inability to bring a claim, when a cross-border shooting occurs, denies those affected the opportunity to receive any restitution when a Border Patrol agent takes the life of an innocent person. The legislation proposed in this Comment aims to solve this inability to bring an action when a cross-border shooting occurs. The legislation will amend 42 U.S.C. §1983 in two important ways. First, it changes the original language of §1983 to include federal agents. Next, it looks to the location of the agent accused of a constitutional violation instead of focusing on the location where the harmed individual was at the time of the violation.

This proposed legislation will allow for innocent citizens of Mexico appropriate access to the American judicial system to address the issue of cross-border shootings.

KJ

https://lawprofessors.typepad.com/immigration/2021/02/immigration-article-of-the-day-the-right-to-kill-how-congress-can-solve-the-problem-presented-in-her.html

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