Professor Andrew Kent was quoted in a Texas Standard article regarding a constitutional tort suit against a U.S. border control officer who, while standing on the U.S. side, shot and killed an unarmed Mexican teenager while he was in Mexico.
Andrew Kent, professor at the Fordham University School of Law, says the issues in this case are sensitive and far-reaching, a situation that likely led the Supreme Court to return the case to the appeals court for further review.
“Justice Kennedy, who’s often a swing vote, has very different instincts about the two big issues in this case – one, whether the constitutional right extends to a Mexican national on Mexican soil, [and]the second one, whether someone should be able to sue a U.S. government official for damages in this context,” Kent says.
The Hernandez family has asked courts to rule on whether or not a U.S. government official can be sued for wrongfully injuring or, in this case, killing someone. Kent says local police officers can be sued in such cases.
“There is no statute that allows suing a federal government official for money damages in these contexts,” Kent says. “And the Supreme Court has kind of supplied that absence at times by saying [that]in some circumstances, even though there’s no statute, we’re going to allow, under the Constitution, a suit against a federal official for money damages.”
Kent says the Supreme Court has recently become more reluctant to allow such suits. Because the Hernandez case was a cross-border incident, it has implications for international relations, and presents an unusual set of facts, he says.
“A big question here, which could make this case quite significant, is that the Fourth Amendment has never previously been held to extend to non-citizens who are outside U.S. borders,” Kent says. “I think the court was very sensitive about wading in there, because the Fourth Amendment is an extremely broad part of the Constitution.”
Kent says allowing an extension of Fourth Amendment protections across the border, and to a non-citizen, in this case, could expose the U.S. government and its officials to a variety of legal actions.
Kent says the case will eventually return to the Supreme Court, giving the newest justice, Neil Gorsuch, an opportunity to participate in arguments.