Amicus Curiae Brief — Jesus C. Hernández, et al., Petitioners v. Jesus Mesa, Jr.

Supreme Court briefAug 9, 2019

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JESUS C. HERNANDEZ, HW DO,

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JESUS MESA, JR.,

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On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

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Donald Francis Donovan

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Carl J. Micarelli

DEBEVOISE & PLIMPTON LLP

919 Third Avenue

New York, New York 10022

(212) 909-6000

dfdonovan@debevoise.com

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SUMMARY OF ARGUMENT.................................... 4

ARGUMENT .............................................................. 6

THERE IS NO PRACTICAL REASON TO DENY A

REMEDY MERELY BECAUSE THE FATAL SHOT

STRUCK SERGIO HERNÁNDEZ ON THE MEXICAN SIDE OF THE BORDER ..................................... 6

II. THE DECISION BELOW MISUNDERSTOOD THE

APPLICABLE LEGAL STANDARD, THE NATURE

OF THE HERNÁNDEZ FAMILY’S CLAIMS, AND

MEXICO’S INTEREST IN FAIR TREATMENT OF

ITS NATIONALS .................................................... 10

A. An Excessive Force Claim Against a

Law Enforcement Officer Is Not a

“New %LYHQV Context”................................. 11

B. An Excessive Force Claim Against a

Law Enforcement Officer Is Not a

Diplomatic or Foreign Policy Question ...... 12

C. This Case Does Not Involve National

Security Concerns ....................................... 15

D. This Case Does Not Involve Extraterritorial Application of U.S. Law.................... 16

III. THE UNITED STATES HAS UNDERTAKEN AN

INTERNATIONAL LEGAL OBLIGATION TO PROVIDE A REMEDY FOR HUMAN RIGHTS VIOLATIONS TO INDIVIDUALS ON BOTH SIDES OF THE

BORDER ............................................................... 19

CONCLUSION......................................................... 26

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86 &DVHV

$WNLQV Y 9LUJLQLD, 536 U.S. 304 (2002).................... 20

%LYHQV Y 6L[ 8QNQRZQ )HGHUDO 1DUFRWLFV $JHQWV,

403 U.S. 388 (1971)...................................... SDVVLP

%RXPHGLHQH Y %XVK,

553 U.S. 723 (2008).................. 4, 6, 7, 8, 16, 17, 26

+DLJ Y $JHH, 453 U.S. 280 (1981) ............................ 12

+HUQiQGH] Y 0HVD, 137 S. Ct. 2003 (2017)........ 16, 18

/DZUHQFH Y 7H[DV, 539 U.S. 558 (2003) ................... 20

3HUH] Y %URZQHOO, 356 U.S. 44 (1958)......................... 7

5RGULJXH] Y 6ZDUW], 899 F.3d 719 (9th Cir.

2018), SHWLWLRQ IRU FHUW ILOHG, No. 18-309

(U.S. Sept. 7, 2018) ............................ 6, 8, 9, 11, 12

5RSHU Y 6LPPRQV, 543 U.S. 551 (2005) ................... 20

6RVD Y $OYDUH]0DFKDLQ, 542 U.S. 692 (2004) ........ 20

8QLWHG 6WDWHV Y 9HUGXJR8UTXLGH],

494 U.S. 259 (1990)............................................ 7, 8

=LJODU Y $EEDVL,

137 S. Ct. 1843 (2017).................... 4, 10, 11, 15, 16

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Inter-State Petition IP-02, Inter-Am. Comm’n

H.R., Report No. 112/10, OEA/Ser.L/V/II.140

Doc. 10 (Oct. 21, 2010) ......................................... 23

$O6DDGRRQ Y 8QLWHG .LQJGRP, Eur. Ct. H.R.,

App. No. 61498/08 (June 30, 2009) ..................... 24

iii

$O6NHLQL Y 8QLWHG .LQJGRP, Eur. Ct. H.R., App.

No. 55721/07 (July 7, 2011) ................................. 24

$OHMDQGUH Y &XED, Case No. 11,589, Inter-Am.

Comm’n H.R., Report No. 86/99, OEA/Ser.L/

V/II.106 Doc. 3 rev. (Sept. 29, 1999) ....... 23, 24, 25

$QGUHRX Y 7XUNH\, Eur. Ct. H.R., App. No.

45653/99 (Oct. 27, 2009) ...................................... 25

$UPHG $FWLYLWLHV RQ WKH 7HUULWRU\ RI WKH &RQJR

'HP 5HS &RQJR Y 8JDQGD , 2005 I.C.J. 168

(Dec. 19, 2005) ..................................................... 23

&HOLEHUWL GH &DVDULHJR Y 8UXJXD\, Comm’cn No.

56/1979, U.N. H.R. Comm., U.N. Doc. CCPR/

C/13/D/56/1979 (July 29, 1981) ........................... 21

&\SUXV Y 7XUNH\, Eur. Ct. H.R., App. No.

25781/94 (May 10, 2001)...................................... 24

.LQGOHU Y &DQDGD, Comm’cn No. 470/1991, U.N.

H.R. Comm., U.N. Doc. CCPR/C/48/D/470/

1991 (July 30, 1993)............................................. 21

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LQ WKH 2FFXSLHG 3DOHVWLQLDQ 7HUULWRU\

$GYLVRU\ 2SLQLRQ , 2004 I.C.J. 136 (July 9,

2004)..................................................................... 23

/RSH] %XUJRV Y 8UXJXD\, Comm’cn No. 52/1979,

U.N. H.R. Comm., U.N. Doc. CCPR/C/13/D/52/

1979 (July 29, 1981)................................. 22, 23, 26

0XQDI Y 5RPDQLD, Comm’cn No. 1539/2006,

U.N. H.R. Comm., U.N. Doc. CCPR/C/96/D/

1539/2006 (Aug. 21, 2009) ................................... 21

3DG Y 7XUNH\, Eur. Ct. H.R., App. No. 60167/00

(June 28, 2007)..................................................... 27

3LVDUL Y 0ROGRYD

5XVVLD, Eur. Ct. H.R., App.

No. 42139/12 (April 21, 2015)........................ 24, 27

gFDODQ Y 7XUNH\, 41 Eur. Ct. H.R. 45 (May 12,

2005)..................................................................... 24

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8 U.S.C. § 1357(a)...................................................... 15

Boundary Convention, U.S.-Mex., Mar. 1, 1889,

26 U.S.T. 1512, Arts. I, II, VIII ........................... 18

Convention for the Solution of the Problem of the

Chamizal, U.S.-Mex., Aug. 29, 1963, 15 U.S.T.

21, 505 U.N.T.S. 185............................................ 18

Arts. 1, 8.......................................................... 18

Art. 3 ........................................................... 8, 18

Art. 9 ............................................................... 18

International Covenant on Civil and Political

Rights, Dec. 19, 1966, U.S. Senate Treaty

Doc. 95-20, 1966 U.S.T. LEXIS 521, 999

U.N.T.S. 171....................................... 19, 20, 22, 23

Art. 2 ............................................................... 22

Art. 2(1)..................................................... 21, 22

Art. 2(3)........................................................... 19

Art. 6(1)..................................................... 19, 20

U.S. Constitution ............................................ 8, 20, 26

Art. I, § 9, Suspension Clause........................ 17

Amend. 4 ......................................................... 20

Amend. 5, Due Process Clause ...................... 20

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American Declaration of the Rights and Duties of

Man, O.A.S. Res. XXX, Art. I (May 2, 1948)....... 24

Border Violence Prevention Council, Fact Sheet

(Jan. 24, 2017), https://www.dhs.gov/sites/

default/files/publications/bvpc-fact-sheet.pdf

[https://perma.cc/3CPW-KRTB] .......................... 14

Dominic McGoldrick, 7KH ,QWHUQDWLRQDO &RYHQDQW

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7UHDWLHV (Fons Coomans & Menno T.

Kamminga eds. 2004) .......................................... 21

Letter of Transmittal from the U.S. President to

the U.S. Senate, Feb. 23, 1978, 1966 U.S.T.

LEXIS 521............................................................ 20

5HVWDWHPHQW 7KLUG RI WKH )RUHLJQ 5HODWLRQV /DZ

RI WKH 8QLWHG 6WDWHV (1987) .................................... 9

U.N. H.R. Comm., General Comment No. 31,

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U.N. Doc. CCPR/C/21/Rev.1/Add.13 (May 26,

2004)..................................................................... 22

U.S. Customs & Border Protection, 6XPPDU\ RI

/DZV (QIRUFHG E\ &%3 (Mar. 8, 2014),

https://www.cbp.gov/trade/rulings/summarylaws-enforced/us-code [https://perma.cc/J24SDQ3Q]................................................................... 15

U.S. Customs & Border Protection, &%3 8VH RI

)RUFH 6WDWLVWLFV )LVFDO <HDU (March

5, 2019), https://www.cbp.gov/newsroom/stats/

cbp-use-force [https://perma.cc/TWV2-YAMW] .... 2

U.S. Dep’t of Transp., Bureau of Transp.

Statistics, %RUGHU &URVVLQJ DQG (QWU\ 'DWD

(accessed July 23, 2019), https://www.bts.gov/

content/border-crossingentry-data........................ 1

U.S. White House, Press Release, 5HPDUNV E\

3UHVLGHQW 2EDPD DQG 3UHVLGHQW &DOGHUyQ RI

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2011)....................................................................... 1

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Mexico has a strong interest in seeing that the

United States provides adequate means to prevent

and redress the unjustified use of force by U.S.

officers in the two countries’ border area. Each of the

two nations has a legitimate concern for the policies

and practices of the other in connection with their

shared border. In particular, Mexico has a vital

interest in working with the United States to

improve the safety and security of the border and to

ensure that both countries’ agents act to protect,

rather than endanger, the safety of the public in the

border area.

The 2,000-mile-long border between Mexico and

the United States is among the busiest in the world,

with hundreds of millions of crossings each year.2

The border runs through populated areas, in some

1 Petitioners’ and Respondent’s blanket written consent

to the filing of DPLFXV FXULDH briefs in support of either party

or neither party is on file with the Clerk of the Court. No

counsel for a party authored this brief in whole or in part.

No party or counsel for a party has made a monetary

contribution intended to fund the preparation or submission

of this brief. No person other than the DPLFXV FXULDH or its

counsel has made such a contribution.

2 6HH

HJ U.S. Dep’t of Transp., Bureau of Transp.

Statistics, %RUGHU &URVVLQJ DQG (QWU\ 'DWD (accessed July

23, 2019), https://www.bts.gov/content/border-crossingentrydata (showing nearly 193 million passenger and pedestrian

crossings in 2018 in the U.S.-bound direction alone); U.S.

White House, Press Release, 5HPDUNV E\ 3UHVLGHQW 2EDPD

DQG 3UHVLGHQW &DOGHUyQ RI 0H[LFR DW -RLQW 3UHVV &RQIHUHQFH

(March 3, 2011) (noting 1 million crossings a day).

cases dividing a single town, city or Indian tribal

area. In recent decades, the establishment of a

secured and patrolled border has meant that residents of border communities come into frequent

contact with officers guarding the border.

Shootings at the border are, unfortunately, not a

rare occurrence. According to U.S. Customs and

Border Protection’s own statistics, its officers

(including Border Patrol agents) have reported use of

deadly force involving firearms over 200 times from

October 2012 through October 2018, nearly all of

them at or near the U.S.-Mexico border.3 Many

Border Patrol shootings have resulted in death, and

a number of those killings involved shots fired across

the border.

In this case, on June 7, 2010, U.S. Border Patrol

agent Jesus Mesa shot and killed Sergio Adrián

Hernández Güereca, a 15-year-old national of

Mexico.4 At the time of the shooting, the agent was

in the United States. The boy was in the mostly dry,

concrete-lined riverbed of the Rio Grande separating

the United States from Mexico.

Under a 1963 treaty between the United States

and Mexico, both countries cooperated to build the

concrete-lined channel along that section of the

3 6HH U.S. Customs & Border Protection, &%3 8VH RI

)RUFH 6WDWLVWLFV )LVFDO <HDU (March 5, 2019),

https://www.cbp.gov/newsroom/stats/cbp-use-force [https://

perma.cc/TWV2-YAMW].

4 Because the district court dismissed the case on the

pleadings (VHH Pet. App. 3), this brief assumes that all facts

alleged in the complaint are true.

river. An international boundary commission consisting of representatives of both nations oversees

the maintenance of the river channel and other

border works. During the time leading up to the

shooting, Sergio and some other boys had been

playing a game in the channel, running up to touch

the border fence on the U.S. side and then back

down into the channel. But at the time the fatal shot

struck him, Sergio happened to be on the Mexican

side of the invisible center line of the jointly maintained channel, which constitutes the formal demarcation of sovereignty between the two nations.

Sergio’s parents sued Agent Mesa in U.S. District

Court for damages for the unjustified killing of their

son. In the decision now under review (Pet. App. 1),

the United States Court of Appeals for the Fifth

Circuit affirmed the District Court’s dismissal of the

action on the ground that no cause of action existed

under %LYHQV Y 6L[ 8QNQRZQ )HGHUDO 1DUFRWLFV

$JHQWV, 403 U.S. 388 (1971), because Sergio was a

Mexican national who was in Mexican territory

when he was killed.

As a sovereign and independent state, Mexico has

a responsibility to look after the well-being of its

nationals. When agents of the United States government violate fundamental rights of Mexican

nationals and others within Mexico’s jurisdiction, it

is a priority to Mexico to see that the United States

provides adequate means to hold the agents accountable and to compensate the victims. The United

States would expect no less if the situation were

reversed and a Mexican government agent, standing

in Mexico and shooting across the border, had killed

an American child standing on U.S. soil.

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Under this Court’s decision in %RXPHGLHQH Y

%XVK, 553 U.S. 723 (2008), there is no bright line at

the U.S. border beyond which all constitutional

rights and remedies cease. Rather, this Court has

employed a case-by-case inquiry to determine if it

would be impractical or anomalous for U.S. courts to

enforce U.S. constitutional rights outside U.S.

borders. Here, Agent Mesa was on U.S. soil when he

acted, he is subject to U.S. law in the performance of

his duties, and there are no practical or political

difficulties in applying U.S. law regardless of which

side of the border Sergio Hernández was on.

The Fifth Circuit erred in holding that, under

=LJODU Y $EEDVL, 137 S. Ct. 1843 (2017), this case

arises in a “new context” involving “special factors”

warranting denial of a remedy. In particular, the

Fifth Circuit had no basis to suggest that this case

raises special diplomatic or foreign-policy issues

merely because of where Sergio Hernández was

standing when Agent Mesa shot him. This case

involves an ordinary civil claim for damages for

unjustified use of force by a law-enforcement officer.

That type of claim is squarely within the power of

courts to adjudicate, and $EEDVL recognized that

excessive-force claims against law enforcement

officers fall well within the existing core of the

%LYHQV remedy. Mexico of course is concerned that its

nationals’ rights are respected by U.S. law enforcement officers and courts. But that is true in all cases

in which Mexican nationals have dealings with the

U.S. legal system, not just cases involving shootings

across the border.

The suggestion that the case raises national security concerns is equally baseless. Agent Mesa’s

shooting of Sergio Hernández was not part of an

antiterrorism operation or other national security

operation. Rather, it arose in the context of ordinary

law enforcement activities, just as if Sergio had been

shot on U.S. soil. As this Court has cautioned,

invocation of the words “national security” is not a

magic talisman that can ward off judicial scrutiny of

unlawful government action.

This notion that the Petitioners’ claim seeks to

apply U.S. law extraterritorially also is misconceived, because the events in question took place

largely on U.S. soil. At the time of the killing, Agent

Mesa stood squarely on the U.S. bank of the Rio

Grande. Sergio Hernández was in a border area

under joint U.S.-Mexican control—at times on the

U.S. side of the boundary and at times on the

Mexican side—and just happened to be on the

Mexican side of the line when he was struck by

Agent Mesa’s bullet.

Finally, the decision below failed to take account

of the binding international human rights obligations that the United States has undertaken by

treaty to Mexico and its nationals. Those include,

among others, the obligation to respect the fundamental right not to be arbitrarily deprived of life and

the right to an effective remedy when fundamental

rights have been violated. A nation’s obligations to

respect human rights do not stop at its borders but

apply anywhere that the nation exercises effective

control. Yet the Fifth Circuit’s decision in this case

means that the families of those killed by U.S.

Border Patrol agents cannot obtain any effective

remedy if their loved ones happened to be on the

Mexican side of the border when shot by U.S. agents.

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Mexico considers it important that the United

States make available an effective remedy to individuals on Mexican territory seeking redress for

unjustified violence by U.S. border officers. The Fifth

Circuit’s decision in this case effectively prevents

any such redress. The Ninth Circuit reached the

opposite result in 5RGULJXH] Y 6ZDUW], 899 F.3d 719

(9th Cir. 2018), SHWLWLRQ IRU FHUW ILOHG, No. 18-309

(U.S. Sept. 7, 2018), which held that a %LYHQV

remedy is available to the family of a Mexican

national killed by a U.S. border officer standing in

Arizona, regardless of where the victim was standing

when the fatal shot struck.

Unlike the Fifth Circuit’s decision in this case,

the Ninth Circuit’s decision in 5RGULJXH] takes

proper account of this Court’s recognition that

remedies for violation of U.S. constitutional rights

can extend beyond the nation’s sovereign territory.

Most recently, in %RXPHGLHQH, this Court held that

questions of the judicial application of U.S. constitutional rights to persons outside the United States

must be answered on the basis of “objective factors

and practical concerns, not formalism.” 553 U.S. at

764; VHH DOVR LG at 726–28, 757–63. The %RXPHGLHQH

case involved prisoners detained at the U.S. Naval

Station at Guantánamo Bay, Cuba, an area within

the sovereign territory of the Republic of Cuba but

under the effective control of the United States. The

Court accepted that Guantánamo was not part of the

territory of the United States. But rather than apply

a technical approach based on GH MXUH sovereignty,

the Court looked to the practical effects of U.S.

control at Guantánamo and held that the constitutional right of habeas corpus applied there.

In so holding, this Court distinguished the case

from 8QLWHG 6WDWHV Y 9HUGXJR8UTXLGH], 494 U.S.

259 (1990). In 9HUGXJR8UTXLGH], the Court declined

to extend the Fourth Amendment’s search warrant

requirement to a search conducted in Mexico by

Mexican police at the request of the U.S. Drug

Enforcement Administration. The Court noted that

applying U.S. constitutional requirements to actions

of Mexican law-enforcement officers acting in

cooperation with U.S authorities would raise serious

practical difficulties for the ability of the United

States to “‘functio[n] effectively in the company of

sovereign nations.’” ,G. at 275 (quoting 3HUH] Y

%URZQHOO, 356 U.S. 44, 57 (1958)). In his concurring

opinion, Justice Kennedy emphasized that the

inapplicability of the warrant requirement did not

necessarily prevent the application of other U.S.

constitutional rights, but joined the majority in

concluding that the circumstances of that case would

make adherence to the Fourth Amendment’s warrant requirement “impracticable and anomalous.” ,G.

at 278 (Kennedy, J., concurring) (quoted in

%RXPHGLHQH, 553 U.S. at 759–60).

Here, unlike 9HUGXJR8UTXLGH], applying U.S.

law would cause no clashes between U.S. and

Mexican law. Nothing in the Petitioners’ claim seeks

to apply U.S. law to actions of Mexican officials.

Agent Mesa was not acting in cooperation with

Mexican law enforcement agencies, nor was he

carrying out any operations on Mexican territory. He

was operating on U.S. soil as part of his duties under

U.S. law, and he was in the United States when he

fired the fatal shot. Extending the requirements of

the U.S. Constitution to cover the actions of a U.S.

officer in the U.S. would not interfere in any way

with Mexico’s “control over its territory … and

authority to apply law there.” %RXPHGLHQH, 553 U.S.

at 754 (internal quotation and citation omitted).

Thus, as the Ninth Circuit correctly concluded in

5RGULJXH], “the practical concerns in 9HUGXJR

8UTXLGH] about regulating conduct on Mexican soil

… do not apply here.” 5RGULJXH], 899 F.3d at 731.

According to the Complaint, just prior to the

deadly shooting, Sergio Hernández and several other

children were playing in the dry, concrete-lined

channel of the Rio Grande, which separates El Paso

from Ciudad Juárez. (Pet. App. 146.) The international border invisibly runs down the center line of

that concrete channel. 6HH Convention for the

Solution of the Problem of the Chamizal, U.S.-Mex.,

Aug. 29, 1963, 15 U.S.T. 21, 505 U.N.T.S. 185, Art. 3

[hereinafter Chamizal Convention]. The children

were repeatedly running up the side of the channel,

touching the U.S. border fence (which is on U.S.

territory), and then running back down into the

bottom of the channel. Sergio Hernández was

apparently on the Mexican side of the border when

Agent Mesa shot him. But there would be no practical difficulties involved if the U.S. courts were to

apply the same law of excessive force to Agent

Mesa’s actions, regardless of which side of that

invisible line Sergio happened to be on when Agent

Mesa’s fatal shot struck him.

Because Agent Mesa “acted on American soil subject to American law,” 5RGULJXH], 899 F.3d at 731,

there is no reason why requiring Agent Mesa to

answer for his actions in a U.S. court would require

any different considerations than any other excessive-force case heard by the U.S. courts. Applying

U.S. constitutional law in such a case does not

disrespect Mexico’s sovereignty. Any invasion of

Mexico’s sovereignty occurred when Agent Mesa shot

his gun across the border at Sergio Hernández—not

when the boy’s parents sought to hold Agent Mesa

responsible in U.S. courts for his actions.

When an illegal act is committed in one country

and has a direct effect in another country, it is well

recognized that ERWK countries have jurisdiction to

prescribe the applicable law, to punish violations

and to adjudicate disputes. 6HH, HJ, 5HVWDWHPHQW

7KLUG RI WKH )RUHLJQ 5HODWLRQV /DZ RI WKH 8QLWHG

6WDWHV § 403 cmt. d, §§ 421(2)(i)-(j), 431(1) (1987).

Exercise of jurisdiction by either of the two nations,

therefore, is neither impracticable nor an affront to

the sovereign interests of the other. Mexico has a

fundamental interest in protecting the rights of its

nationals and other persons in its territory. The

United States also has an interest in holding accountable those who would use its territory to launch

unjustified assaults on nationals of friendly foreign

nations, particularly if those attacks are carried out

by a federal officer of the United States in the course

of his duties.

The Mexican government has sought the extradition of Agent Mesa to Mexico to face criminal

charges, but the U.S. government denied that

request, and it has not itself commenced a criminal

prosecution. As a practical matter, if Agent Mesa

avoids travel to Mexico, any effective and enforceable

remedy against him can only come from the U.S.

courts, regardless of any civil or criminal jurisdiction

the Mexican courts might have.

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In %LYHQV, this Court held that an individual may

bring a civil action against federal officers for

violation of constitutional rights in the absence of

“special factors counseling hesitation.” %LYHQV, 403

U.S. at 396. In =LJODU Y $EEDVL, this Court clarified

that courts should consider whether such “special

factors” exist when a %LYHQV claim is asserted in a

“new context.” $EEDVL, 137 S. Ct. at 1857. In that

case, the new context was a suit seeking damages

from senior government officials for “detention

policy” following the September 11, 2001 terrorist

attacks, as opposed to a classic %LYHQV suit seeking

damages against individual officers who committed

abuses against individual detainees. ,G at 1858. The

Court held that no %LYHQV remedy was available for

the plaintiffs’ detention policy claims, LG Dt 1863,

but remanded the case to the lower courts to consider a prisoner abuse claim against an individual

guard, LG at 1869.

In the present case, the Fifth Circuit’s efforts to

come up with “special factors” justifying its denial of

a remedy are based on a misapplication of the legal

standard established in $EEDVL and a fundamental

misunderstanding of what this case is about.

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As an initial matter, the complaint does not seek

a %LYHQV remedy in a “new context.” Agent Mesa was

a law enforcement officer of the United States who

used unnecessary and deadly force against a civilian.

U.S. constitutional law on the use of excessive force

by law enforcement officers is well developed, and

the availability of a %LYHQV remedy in excessive force

cases is hardly new or controversial. 6HH $EEDVL, 137

S. Ct. at 1857 (reaffirming that %LYHQV is settled law

in the “common and recurrent sphere of law enforcement”).

Unlike the complaint in $EEDVL, the Petitioners’

complaint in this case does not challenge U.S.

government policy but only the abuse of power by

one individual law enforcement officer. 6HH 5RGUL

JXH], 899 F.3d at 745. The fact that the victim

happened to be on Mexican soil when the officer’s

bullet struck him does not change the U.S. legal

principles governing the use of force by U.S. law

enforcement officers acting within the United States.

Accordingly, the Fifth Circuit erred in treating this

case as arising in as a “new context.”

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The Fifth Circuit majority also erred when, citing

+DLJ Y $JHH, 453 U.S. 280 (1981), it held that no

remedy should be available because, it said, the case

involved issues of “foreign policy.” Contrary to what

the Fifth Circuit seemed to think, however, the

availability of a damages remedy for civil rights

violations is not a foreign policy matter solely within

the executive branch’s competence. Rather, the

adjudication of damages claims between individuals

is a core judicial function.

As the Ninth Circuit observed in 5RGULJXH]

“[t]here is no American foreign policy embracing

shootings like the one pleaded here.” 899 F.3d at

746. Granting a remedy in this case—in exactly the

same manner as if Sergio had been a U.S. national

or on U.S soil when shot—raises no foreign policy

concerns. On the contrary, refusing to consider

Sergio’s parents’ claim on the merits, based solely on

where their son was standing at the time he was

struck by Agent Mesa’s bullet, is what has the

potential to negatively affect international relations.

Nor is there any basis for the Fifth Circuit’s suggestion (Pet. App. 16) that Mexico’s interest in this

case somehow transforms a %LYHQV claim into a

diplomatic matter. Of course Mexico has an interest

in seeing that United States officials do not violate

Mexican nationals’ legal rights. But the same is true

in every case when a foreign national comes in

contact with U.S. government officials. The Fifth

Circuit majority professed concern that the United

States could be responsible to foreign sovereigns for

injuring or killing their nationals. (Pet. App. 15.) But

as Judge Prado pointed out in his dissent, “isn’t the

United States equally answerable to foreign sovereigns when federal officials injure foreign citizens on

domestic soil?” (Pet. App. 36.) Mexico always has an

interest in ensuring that the U.S. executive, legislative and judicial branches treat its nationals fairly

and in accordance with the rule of law and due

process. Surely that does not transform every civil or

criminal case involving Mexican nationals into a

foreign policy issue that courts must avoid deciding.

The Fifth Circuit’s suggestion that the matter can

be resolved by the Border Violence Prevention

Council (Pet. App. 16) completely misunderstands

that Council’s function. The Council is a binational

working group that has met on a few occasions to

discuss and coordinate U.S. and Mexico law enforcement policy at the border. It is not a tribunal for

adjudicating or settling individual claims. As a fact

sheet about the Council on the U.S. Department of

Homeland Security’s website explains, the Council

“is a policy-level decision making body that promotes

initiatives aimed at preventing incidents of border

violence through collaborative efforts, joint public

engagement campaigns, increased transparency and

information exchange, and the sharing of best

practices.”5 There is no conflict or overlap between

the remedy sought here and the role of the Council.

Finally, the Fifth Circuit was incorrect in suggesting that “[i]t would undermine Mexico’s respect

for the validity of the Executive’s prior determinations, if, pursuant to a %LYHQV claim, a federal court

entered a damages judgment against Agent Mesa.”

(Pet. App. 16.) The U.S. executive branch, of course,

has made no “prior determination” of Agent Mesa’s

potential civil liability to Sergio’s parents. It only

made a prosecutorial decision not to bring criminal

charges. A nonprosecution decision by the government does not insulate an individual from liability in

a civil suit by a private party.

The court below had no need to speculate about

how Mexico might view a civil damages judgment;

the Mexican government can speak for itself. The

Mexican government fully understands that the

United States—like Mexico—is a constitutional

republic with separation of powers between the

executive and the judiciary. The Mexican government also is well aware that criminal prosecution

and civil litigation are different processes, involving

different issues and standards of proof, and that the

executive branch does not control private parties’

pursuit of civil suits or the judiciary’s resolution of

those suits. Thus, Mexico’s respect for the U.S.

executive’s prosecutorial discretion would not be

affected, in any way, by the U.S. courts’ adjudication

5 Border Violence Prevention Council, Fact Sheet (Jan.

24, 2017), https://www.dhs.gov/sites/default/files/publications/

bvpc-fact-sheet.pdf [https://perma.cc/3CPW-KRTB].

of a civil damages claim by Sergio Hernández’s

parents against Agent Mesa. Mexico expects that the

U.S. courts can and will perform their judicial

functions in this case as in every other.

7KLV &DVH 'RHV 1RW ,QYROYH 1DWLRQDO 6HFX

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This case has nothing to do with international

terrorism, espionage, or any other national security

concerns. As this Court noted in $EEDVL, the invocation of the label “national security” is not a talisman

that can be invoked to “ward off inconvenient

claims.” 137 S. Ct. at 1862.

The mere fact that the defendant was a Border

Patrol agent or that the events took place at an

international border does not create a national

security concern. The Border Patrol is a law enforcement agency tasked with enforcing laws against

unauthorized entry and smuggling, among others,

most of which seldom touch on issues of national

security.6 While the Border Patrol may at times deal

with cases involving terrorism or other national

security issues, the same is true of U.S. federal, state

and local police agencies operating far from the

border. In that respect, the Border Patrol is a law

enforcement agency like any other. As this Court has

recognized, a %LYHQV remedy is routinely available in

6 6HH HJ 8 U.S.C. § 1357(a); U.S. Customs & Border

Protection, 6XPPDU\ RI /DZV (QIRUFHG E\ &%3 (Mar.

8, 2014), https://www.cbp.gov/trade/rulings/summary-lawsenforced/us-code [https://perma.cc/J24S-DQ3Q].

“this common and recurrent sphere of law enforcement.” $EEDVL, 137 S. Ct. at 1857.

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DO $SSOLFDWLRQ RI 86 /DZ

Finally, the Fifth Circuit erred in resting its decision on the presumption against “extraterritoriality”

of domestic laws. This case involved a U.S. officer,

standing on U.S. soil, discharging his firearm in such

a way that he could have hit nationals of any

country on either side of the border. Moreover, it is

unclear if Agent Mesa even knew whether Sergio

Hernández was on the U.S. or Mexican side of the

border when he fired the fatal shot, or on which side

of the boundary between the two nations the bullet

would strike. 6HH +HUQiQGH] Y 0HVD, 137 S. Ct.

2003, 2009 (2017) (Breyer, J., dissenting). He could

not have known these facts with precision, because

the border within the Rio Grande channel is not a

physical barrier: it is merely an “engineer’s imaginary line.” ,G at 2010 (Breyer, J., dissenting)

(internal quotation marks omitted). Treating this

case as somehow involving an improper projection of

U.S. law beyond the nation’s boundaries ignores the

facts.

As this Court held in %RXPHGLHQH Y %XVK, 553

U.S. 723 (2008), “questions of extraterritoriality turn

on objective factors and practical concerns, not

formalism.” ,G. at 764. In %RXPHGLHQH, the Court

recognized that Cuba, not the United States, had

formal sovereignty over the land under the U.S.

military base at Guantánamo Bay. Yet the Court

held that the United States had “jurisdiction and

control” over the base for purposes of the constitutional rights asserted in that case.

Although the specific issue in %RXPHGLHQH concerned the application of the Suspension Clause,

U.S. Const. Art. I, § 9, the Court based its decision

on extraterritoriality precedents in a variety contexts. (6HH Pet. App. 83–85 (Prado, J., dissenting

from prior Fifth Circuit decision).) In %RXPHGLHQH,

this Court observed that it is not the case that “GH

MXUH sovereignty is or has ever been the only relevant

consideration in determining the geographic reach of

the Constitution or of habeas corpus.” %RXPHGLHQH.

553 U.S. at 764. Thus, the Fifth Circuit’s suggestion

that the reasoning of %RXPHGLHQH has no application

outside the Suspension Clause context is plainly

mistaken.

Here, Agent Mesa was standing on the U.S. bank

of the river, in an area within U.S. sovereign territory and under U.S. law, when he fired the fatal shot.

That fact, by itself, should be enough to demonstrate

that this case does not involve extraterritorial

application of U.S. law.

Moreover, it is not correct to say that Sergio Hernández was outside U.S. control at the time the fatal

shot struck him. The dry riverbed where Sergio

Hernández was shot and killed is within a zone of

cooperation between the U.S. and Mexico, which has

been the site of longstanding and constant activity

by the citizens and governments of both nations. The

concrete-lined channel where Sergio Hernández was

fatally shot has its origin in a 1963 treaty by which

the United States and Mexico settled a longstanding

border dispute resulting from a change in the course

of the Rio Grande. 6HH Chamizal Convention, VXSUD.

As part of the settlement, the two countries agreed

to jointly build and maintain a concrete-lined

channel to contain the Rio Grande’s flow in the

El Paso–Juárez area to prevent the river from

shifting course in the future. 6HH LG. Arts. 1, 8.

Although the demarcation of the two nations’ formal

sovereignty runs invisibly along the center of the

concrete-lined riverbed, VHH id. Art. 3, management

and control of the entire riverbed is effectively

shared. 6HH JHQHUDOO\ +HUQiQGH], 137 S. Ct. at 2009–

2011 (Breyer, J., dissenting). The International

Boundary and Water Commission, a binational

entity established by an earlier treaty, has ongoing

responsibility for maintenance and control of those

works. 6HH Chamizal Convention, VXSUD Art. 9;

Boundary Convention, U.S.-Mex., Mar. 1, 1889, 26

U.S.T. 1512, Arts. I, II, VIII.

Thus, contrary to what the Fifth Circuit seemed

to believe, no bright line of demarcation exists

between areas of practical U.S. control and areas of

practical Mexican control in the dry riverbed. The

location where Agent Mesa’s bullet struck Sergio

Hernández, though within Mexican sovereign

territory, was by treaty within a jointly administered

area. As the facts of this case make clear, areas on

the Mexican side of the line are within range of rifle

fire from U.S. Border Patrol agents who are standing

entirely on the U.S. side of the river. In this case, at

the time of the shooting, only the United States was

exercising control as a practical matter, as Agent

Mesa was patrolling the area and it has not been

alleged that Mexican officials also were present. 6HH

LQIUD Part III.

For each of these reasons, there is no sound basis

to treat this case any differently than if Sergio

Hernández had been just a few feet away on the U.S.

side of the formal boundary line when Agent Mesa

killed him.

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Mexico and the United States have both recognized that respect for basic human rights, including

the right not to be arbitrarily deprived of life, is part

of the international obligations of every nation.

Among other things, both Mexico and the United

States have ratified the International Covenant on

Civil and Political Rights (ICCPR),7 which provides

in Article 6(1) that “[e]very human being has the

inherent right to life. This right shall be protected by

law. No one shall be arbitrarily deprived of his life.”

The ICCPR further provides, in Article 2(3), that

individuals whose rights are violated “shall have an

effective remedy,” including judicial remedies, and

that those remedies must be enforced when granted.

Although the United States’ obligations under the

ICCPR have not been treated as directly enforceable

7 International Covenant on Civil and Political Rights,

Dec. 19, 1966, U.S. Senate Treaty Doc. 95-20, 1966 U.S.T.

LEXIS 521, 999 U.N.T.S. 171 (ratified by Mexico Mar. 23,

1981; ratified by U.S. June 8, 1992).

in United States courts, VHH 6RVD Y $OYDUH]

0DFKDLQ, 542 U.S. 692 (2004), this Court has

recognized that decisions interpreting the ICCPR

and other international human rights treaties may

be persuasive to the extent they shed light on basic

human rights principles that are common to those

treaties and the U.S. Constitution. 6HH, HJ, 5RSHU Y

6LPPRQV, 543 U.S. 551, 575–76 (2005); /DZUHQFH Y

7H[DV, 539 U.S. 558, 573 (2003); $WNLQV Y 9LUJLQLD,

536 U.S. 304, 316 n.21 (2002). The international

commitments that the United States undertook in

Article 6(1) of the ICCPR have obvious parallels in

the Fourth Amendment and the Due Process Clause

of the Fifth Amendment to the U.S. Constitution. In

fact, the principal reason the United States declared

the ICCPR non-self-executing in U.S. courts was

that it regarded existing U.S. constitutional law as

being more than sufficient to comply with the

ICCPR.8

It is well established under the ICCPR and other

international human rights treaties that a nation

has human rights obligations whenever it exercises

8 The Executive Branch advised the Senate that “the

substantive provisions of [the ICCPR] are entirely consistent

with the letter and spirit of the United States Constitution

and laws,” except in a few instances in which the U.S. took

an explicit reservation against specific ICCPR provisions.

Letter of Transmittal from the U.S. President to the U.S.

Senate, Feb. 23, 1978, 1966 U.S.T. LEXIS 521, at *2.

Interpreting the U.S. Constitution and laws as inapplicable

in a situation covered by the ICCPR would leave an

unexpected gap in the intended U.S. legal framework for

compliance with the ICCPR.

“effective control” over an individual, even if such

control is exercised outside of its own territory. The

claim in this case lies within the scope of the United

States’ international human rights commitments

because the U.S. federal government, through the

actions of Agent Mesa, exercised power and effective

control over Sergio Hernández.

In particular, Article 2(1) of the ICCPR requires

each party “to respect and to ensure to all individuals within its territory and subject to its jurisdiction

the rights recognized in the [ICCPR].” This provision

has been read disjunctively to apply to “all individuals within [the State’s] territory” and “all individuals

… subject to [the State’s] jurisdiction.”9 In keeping

with the intent of the ICCPR to protect individual

9 &HOLEHUWL GH &DVDULHJR Y 8UXJXD\, Comm’cn No. 56/

1979, U.N. H.R. Comm., U.N. Doc. CCPR/C/13/D/56/1979,

¶¶ 10.1–10.3 (July 29, 1981) (Covenant applies to cases of

kidnapping by State agents abroad); 0XQDI Y 5RPDQLD,

Comm’cn No. 1539/2006, U.N. H.R. Comm., U.N. Doc.

CCPR/C/96/D/1539/2006, ¶ 14.2 (Aug. 21, 2009) (State may

be liable for violations of the Covenant outside of its area of

control, as long as State’s activity was “a link in the causal

chain that would make possible violations in another

jurisdiction”); .LQGOHU Y &DQDGD, Comm’cn No. 470/1991,

U.N. H.R. Comm., U.N. Doc. CCPR/C/48/D/470/1991, ¶ 14.6

(July 30, 1993) (State party may be liable under the

Covenant for extraditing a person within its jurisdiction or

under its control if there is a real risk that the extradited

person’s rights under the Covenant will be violated in the

receiving jurisdiction); Dominic McGoldrick, 7KH ,QWHUQD

WLRQDO &RYHQDQW RQ &LYLO DQG 3ROLWLFDO 5LJKWV, § 4.3, in

([WUDWHUULWRULDO $SSOLFDWLRQ RI +XPDQ 5LJKWV 7UHDWLHV (Fons

Coomans & Menno T. Kamminga eds. 2004).

human rights, “jurisdiction” has been given a flexible

reading, turning on the State’s effective exercise of

control rather than on legal technicalities. The

United Nations Human Rights Committee—the body

charged with interpreting the ICCPR—has observed

that:

States Parties are required by article 2,

paragraph 1, to respect and to ensure the

Covenant rights to all persons who may be

within their territory and to all persons

subject to their jurisdiction. This means

that a State party must respect and ensure the rights laid down in the Covenant

to anyone within the power or effective

control of that State Party, even if not situated within the territory of the State

Party.

U.N. H.R. Comm., General Comment No. 31, 1DWXUH

RI WKH *HQHUDO /HJDO 2EOLJDWLRQ ,PSRVHG RQ 6WDWHV

3DUWLHV WR WKH &RYHQDQW, U.N. Doc. CCPR/C/21/Rev.1/

Add.13, ¶ 10 (May 26, 2004).

This principle has been applied in a variety of

situations in which States have violated the rights of

individuals without fully controlling the territory on

which those violations occur. For example, the U.N.

Human Rights Committee has opined that the

alleged secret detention and torture of a trade-union

activist in Argentina by Uruguayan security officials

would violate the ICCPR. /RSH] %XUJRV Y 8UXJXD\,

Comm’cn No. 52/1979, U.N. H.R. Comm., U.N. Doc.

CCPR/C/13/D/52/1979 (July 29, 1981). The Committee observed that “it would be unconscionable to so

interpret the responsibility under article 2 of the

Covenant as to permit a State party to perpetrate

violations of the Covenant on the territory of another

State, which violations it could not perpetrate on its

own territory.” ,G. ¶ 12.3.10

Under other human rights instruments, a similar

principle has been found to apply even in situations

where the State has used lethal force without ever

obtaining physical custody of the victim. It is the use

of force itself that constitutes sufficient exercise of

control for purposes of the jurisdiction under the

relevant human rights instruments. For example,

the Inter-American Commission on Human Rights

has applied an effective-authority test in several

cases, including $OHMDQGUH Y &XED, Case No. 11,589,

Inter-Am. Comm’n H.R., Report No. 86/99, OEA/

Ser.L/V/II.106 Doc. 3 rev. (Sept. 29, 1999).11 The

$OHMDQGUH case arose out of the well-known 1996

“Brothers to the Rescue” incident, in which the

10 Similarly, the International Court of Justice has re-

peatedly recognized that the ICCPR applies in occupied

territory under a State’s control, even though that territory

is not technically part of the State’s sovereign territory. 6HH

HJ $UPHG $FWLYLWLHV RQ WKH 7HUULWRU\ RI WKH &RQJR 'HP

5HS &RQJR Y 8JDQGD , 2005 I.C.J. 168, ¶ 216 (Dec. 19,

2005); /HJDO &RQVHTXHQFHV RI WKH &RQVWUXFWLRQ RI D :DOO LQ

WKH 2FFXSLHG 3DOHVWLQLDQ 7HUULWRU\ $GYLVRU\ 2SLQLRQ , 2004

I.C.J. 136, ¶¶ 109–111 (July 9, 2004).

11 6HH DOVR HJ $LVDOOD 0ROLQD &DVH

(FXDGRU Y &R

ORPELD , Inter-State Petition IP-02, Inter-Am. Comm’n H.R.,

Report No. 112/10, OEA/Ser.L/V/II.140 Doc. 10, ¶¶ 87–103

(Oct. 21, 2010) (American Convention on Human Rights

applied in Ecuador where Colombian armed forces conducted a bombing raid and thereafter “exercised acts of authority

over the survivors” in the bombed area).

Cuban Air Force shot down two unarmed civilian

airplanes in international airspace between South

Florida and Cuba. The Commission found that the

facts constituted “conclusive evidence that agents of

the Cuban State, although outside their territory,

placed the civilian pilots of the ‘Brothers to the

Rescue’ organization under their authority.” ,G. ¶ 25.

The Commission went on to hold that the Cuban Air

Force’s unjustified use of lethal force violated

fundamental principles of human rights, including

the right to life as recognized in Article I of the

American Declaration of the Rights and Duties of

Man.12 ,G. ¶ 53.

The European Court of Human Rights has adopted a similar functional approach in cases arising

under the European Human Rights Convention.13 It

12 American

Declaration of the Rights and Duties of

Man, O.A.S. Res. XXX (May 2, 1948).

13 Convention for the Protection of Human Rights and

Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222.

6HH HJ., 3LVDUL Y 0ROGRYD

5XVVLD, Eur. Ct. H.R., App.

No. 42139/12, ¶ 33 (April 21, 2015) (convention applied to

Russia where Russian solider shot and killed a Moldovan

citizen even though Russian soldier was not in Russian

territory when he fired his weapon); gFDODQ Y 7XUNH\, 41

Eur. Ct. H.R. 45, ¶ 91 (May 12, 2005) (convention applied in

view of “effective Turkish authority” over individual in

custody of Turkish officials in Nairobi, Kenya); &\SUXV Y

7XUNH\, Eur. Ct. H.R., App. No. 25781/94, ¶¶ 69–80 (May 10,

2001) (convention applied where Turkey exercised “effective

control” in the purported Turkish Republic of Northern

Cyprus); $O6DDGRRQ Y 8QLWHG .LQJGRP, Eur. Ct. H.R., App.

No. 61498/08, ¶¶ 86–89 (June 30, 2009) (convention applied

in U.K. military prison in Iraq); $O6NHLQL Y 8QLWHG

FRQWLQXHG

has applied the Convention in several cases where,

as here, a State’s actions within its territory resulted

in injuries to victims outside its territory. For

example, in $QGUHRX Y 7XUNH\, Eur. Ct. H.R., App.

No. 45653/99 (Oct. 27, 2009), a case involving the

shooting of a civilian across the Turkish-Cypriot

cease-fire line, the European Court of Human Rights

held that “even though the applicant sustained her

injuries in territory over which Turkey exercised no

control, the opening of fire on the crowd from close

range, which was the direct and immediate cause of

those injuries, was such that the applicant must be

regarded as ‘within the jurisdiction’ of Turkey” so as

to engage Turkey’s human rights obligations. ,G. ¶

25.14

This case is, in many respects, an even easier

case than the cases cited. Unlike $OHMDQGUH, $QGUHRX

and the cases involving occupied territory, the killing

at issue in this case does not involve military action.

.LQJGRP, Eur. Ct. H.R., App. No. 55721/07, ¶¶ 130–150

(July 7, 2011) (convention applied in Iraq where the

Coalition Provisional Authority exercised control).

14 6HH DOVR HJ 3DG Y 7XUNH\, Eur. Ct. H.R., App. No.

60167/00, ¶¶ 52–55 (June 28, 2007) (convention applied

where Turkish helicopter shot and killed seven Iranian men

near the Turkey-Iran border, even if it was unclear whether

the Iranian men had crossed the border into Turkey); 3LVDUL,

VXSUD note 13, ¶ 33 (noting the accepted rule that “in certain

circumstances, the use of force by a State’s agents operating

outside its territory may bring the individual thereby

brought under the control of the State’s authorities” into its

jurisdiction, such that the convention and its obligations

apply).

Unlike /RSH] %XUJRV, it does not involve overseas

activities by intelligence or national security agencies. And unlike each of those cases, it does not even

involve action outside a country’s sovereign territory:

Agent Mesa was standing on U.S. soil when he shot

and killed Sergio Hernández. The agent was patrolling the United States side of the border in the

course of his law-enforcement duties for the U.S.

government and exercised effective control and

authority over the boy through use of deadly force

against him. The fact that the boy happened to be on

the other side of the invisible line separating the two

countries does not change the nature of the agent’s

actions in the United States or their lethal consequences.

This Court has already reached a similar result

in %RXPHGLHQH, in which it rejected a rigid territorial

approach to the application of rights guaranteed by

the U.S. Constitution to individuals outside the

United States. Here, as in %RXPHGLHQH, practicality

and common sense—as well as the United States’

international human rights obligations—demonstrate that the U.S. Border Patrol’s obligation to

refrain from unjustified use of deadly force does not

vanish when the victim is located just across the

border in the territory of a foreign nation.

&21&/86,21

For the reasons stated above, DPLFXV FXULDH the

Government of the United Mexican States respectfully urges the Court to reverse the judgment of the

United States Court of Appeals for the Fifth Circuit

and remand the case for proceedings on the merits.

Respectfully submitted,