Do U.S. legal protections stop at the border?

Supreme Court | The Supreme Court considers where to set the geographical limits of the Constitution
by Mary Reichard
Posted 2/28/17, 10:26 am

Just as tensions between the United States and Mexico hit a high pitch over building a wall between them, a U.S. Supreme Court case could affect the rights of people on both sides of the border.

The court heard arguments last week in a dispute between U.S. Border Patrol Agent Jesus Mesa and the family of a 15-year-old Mexican boy from Juarez, just across the border from El Paso, Texas. On June 7, 2010, Sergio Hernandez and some other teens played a dangerous game in a culvert at the border. They dared each other to run up and touch the barbed-wire fence, then scampered back safely inside the Mexican border.

Mesa arrived on the scene, detained another of the boys, and fired his weapon. One of his shots struck Hernandez, and the unarmed teenager fell to the ground dead.

Mesa fired from U.S. soil, but Sergio died on Mexican soil.

Mesa claims smugglers nearby hurled rocks at him, and he shot in self-defense. The Obama administration’s Justice Department backed Mesa’s account. So did two lower courts that dismissed the lawsuit because the boy was not a U.S. citizen. The courts ruled the family had no standing to claim the Fourth Amendment’s constitutional protection from unlawful seizure applied to their son.

At the Supreme Court, the family’s lawyer, Robert Hilliard, had the emotional upper hand. But he ran into trouble when questioned about the unintended consequences of applying constitutional principles outside the United States. 

“How do you analyze the case of a drone strike in Iraq where the plane is piloted from Nevada? Why wouldn’t the same analysis apply in that case?” Chief Justice John Roberts asked.

Hilliard tried to limit the inquiry to the facts of the case, but Justice Stephen Breyer pressed him: “So what are the words that we write that enable you to win, which is what you want, and that avoid confusion, uncertainty, or decide these other cases the proper way?”

A 1990 ruling by the Supreme Court said constitutional rights only applied inside the United States unless a person had a “significant voluntary connection” to the country.

Lawyers for both Mesa and the U.S. government argued the Fourth Amendment does not apply except on American soil.

“The border is very real and very finite. It’s not elastic,” attorney Randolph Ortega said. But Justices Elena Kagan and Ruth Bader Ginsburg pointed out that reasoning can be impractical at times.

“The dividing line isn’t even marked on the ground. You can’t tell on the ground where Mexico ends and the United States begins,” Kagan said. “It’s this liminal area, a no-man’s land, which is kind of neither one thing nor another thing.”

The bench seemed divided on where to draw the line: At the border, as the federal government argues, or on some broader principle. If it comes down to a 4-4 tie, the lower court ruling will stand and the family of the dead boy will get no remedy. But if Judge Neil Gorsuch is confirmed to the Supreme Court in March, a rehearing could change the outcome.

Listen to “Legal Docket” on the Feb. 27, 2016, edition of The World and Everything in It.

Mary Reichard

Mary is co-host, legal affairs correspondent, and dialogue editor for WORLD Radio. She is also co-host of the Legal Docket podcast. Mary is a graduate of World Journalism Institute and St. Louis University School of Law. She resides with her husband near Springfield, Mo.

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