noting that extending the Fourth Amendment protections to a Mexican national on Mexican soil might carry a host of implications for U.S. Border Patrol’s use of sophisticated surveillance systems (including mobile surveillance units, thermal imaging systems, unmanned air-crafts and other large-and small-scale non-intrusive inspection equipment per, Kyllo v. United States, 533 U.S. 27, 40, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001))
How later courts described this case
- noting that extending the Fourth Amendment protections to a Mexican national on Mexican soil might carry a host of implications for U.S. Border Patrol’s use of sophisticated surveillance systems (including mobile surveillance units, thermal imaging systems, unmanned air-crafts and other large-and small-scale non-intrusive inspection equipment per, Kyllo v. United States, 533 U.S. 27, 40, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001))
- assuming arguendo that Plaintiffs averred a violation of the “law of nations” the ATS would recognize by alleging “that the United States violated the international prohibition against ‘extrajudicial killings’”
- recognizing Bivens Fifth Amendment claim extraterri-torially for “conscience-shocking conduct”
- outlining the scope of the U.S. Border Patrol’s presence and influence along the U.S.’s southwest border with Mexico.
Written by the judges who cited it.
The opinion
JAMES L. DENNIS, Circuit Judge,
concurring in part and concurring in the judgment:
I join the court’s opinion in its entirety except for Part IV, with which I agree in part and in result. In United States v. Verdugo-Urquidez, 494 U.S. 259 , 110 S.Ct. 1056 , 108 L.Ed.2d 222 (1990), the Supreme Court apparently ruled that the phrase “the people” in the Fourth Amendment “refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this community to be considered part of that community.” Id. at 265 , 110 S.Ct. 1056 . I am inclined to agree, however, with those who have suggested that the Verdugo-Urquidez view cannot be squared with the Court’s later holding in Boumediene v. Bush, 553 U.S. 723 , 128 S.Ct. 2229 , 171 L.Ed.2d 41 (2008), that “questions of extraterritoriality turn on objective factors, and practical concerns, not formalism.” Id. at 764 , 128 S.Ct. 2229 ; see Wayne R. LaFave et al., 2 CRim. PRoc. § 3.1(i) n. 237.1 (3d ed.2014) (citing Gerald L. Neuman, The Extraterritorial Constitution After Boumediene v. Bush, 82 S. Cal. L.Rev. 259, 259, 272 (2008); Ellen S. Pod-gor, Welcome to the Other Side of the Railroad Tracks: A Meaningless Exclusionary Rule, 16 Sw. J. Int’l L. 299, 310 (2010)); Baher Azmy, Executive Detention, Boumediene, and the New Common *281 Law of Habeas, 95 Iowa L.Rev. 445, 465 (2010); Christina Duffy Burnett, A Convenient Constitution? Extraterritoriality After Boumediene, 109 Colum. L.Rev. 973, 1044 (2009); Timothy Zick, Territoriality and the First Amendment: Free Speech at — and Beyond — Our Borders, 85 Notre Dame L.Rev. 1543,1614 (2010).
The Mexican government has indicated that our adjudication of the Appellants’ claims, whether under the Fourth or Fifth Amendment, in this particular case would not cause any friction with its sovereign interests. However, it appears that our judicial entanglement with extraterritorial Fourth Amendment excessive-force claims would be far more likely to involve impracticable and anomalous factors than would a “shocks the conscience” Fifth Amendment claim. For these reasons, I agree with the opinion of the court in declining to apply the Fourth Amendment in adjudicating the Appellants’ claims but I do so out of concern for pragmatic and political questions rather than on a formal classification of the litigants involved.