Orin Kerr writes:
The Supreme Court will hear arguments next week in a Fourth Amendment case, Hernandez v. Mesa. The facts of the case are simple. At the border that separates El Paso, Tex., from Ciudad Juárez, Mexico, a U.S. border patrol agent named Mesa shot and killed a Mexican citizen named Hernandez. The bullet itself crossed the border, as Mesa was on U.S. land and Hernandez was on Mexican land. A subsequent lawsuit was filed by Hernandez’s parents, as successors-in-interest to his estate, alleging excessive force under the Fourth Amendment.
The cert petition articulated two questions to be decided:
Does a formalist or functionalist analysis govern 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?
May qualified immunity be granted or denied based on facts—such as the victim’s legal status— unknown to the officer at the time of the incident?
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