Amicus Curiae Brief — Hernandez v. Mesa, 136 S. Ct. 567 (2015) (No. 15-118)

FILED

No. 15-118 DEC - 9 2016

OFFICE OF THE CLEi%

Iu The

Supreme Court of the Anited States

a

JESUS C. HERNANDEZ, et al.,

Petitioners,

Vv.

JESUS MESA, JR.,

Respondent.

+

On Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

+

BRIEF OF AMICUS CURIAE

RESTORE THE FOURTH, INC.

IN SUPPORT OF PETITIONERS

7

MAHESHA P. SUBBARAMAN

Counsel of Record

SUBBARAMAN PLLC

222 S. 9th St., Ste. 1600

Minneapolis, MN 55402

(612) 315-9210

mps@subblaw.com

December 9, 2016

i

TABLE OF CONTENTS

Page

I is cacaeusdesantenapengehonianinedsn’ ii

Interest of the Amicus Curiae .............ccscceeeeeeerers 1

SUMMBATY CF CNS ATMUMONE .0..000c0seseccsscsccsevesesceneee 2

a iinkcticiincictiidteatnndattaiitiiinn icliaciaiitnbeheintieiimmnigess 5

I. The Constitution is enforceable against all

U.S. officials who exceed their power ........ 5

A. All actions by U.S. officials must be au-

thorized by the Constitution ............... 5

B. The Constitution does not authorize

the arbitrary use of lethal force .......... 10

C. No U.S. official is above the law.......... 13

Il. In the Founding Era, government officials

could always be held individually liable for

illegal seizures, regardless of the seizure’s

location or the victim’s nationality ............ 16

A. The early history of federal claims law

indicates that U.S. officials could al-

ways be held individually liable for

any illegal seizure they committed ..... 21

B. The early history of federal maritime

law indicates that U.S. officials could

always be held individually liable for

any illegal seizure they committed ..... 25

Ill. The plurality opinion in Verdugo-Urquidez

should not be followed in Hernandez ........ 30

SL cascade ohadsamehneessetideimnnins 31

li

TABLE OF AUTHORITIES

Page

CASES

Am. Sch. of Magnetic Healing v. McAnnulty, 187

SE Se I aiid deintieiceeRchd tends clei etulsasdindsla meinen 14, 15

Bank of Columbia v. Okley, 17 U.S. 122 (1819).......... 10

Boyd v. United States, 116 U.S. 616 (1886)............ 3,12

Brinegar v. United States, 338 U.S. 160 (1949).....12, 16

Butz v. Economu, 438 U.S. 478 (1978)...........ccccecceeeeee 30

Chisholm v. Georgia, 2 U.S. 419 (1793) ........ccccceeeeee 20

Cunningham v. Macon & Brunswick R.R. Co.,

I sn ses ieudecieealenenesonns 25

Dep’t of Transp. v. Ass’n of Am. R.R., 135 S. Ct.

SESE ST EP SERIES, Ne SF OS Sees ORR MOIS OO 13

Fletcher v. Peck, 10 U.S. 87 (1810) ............ccccccccssscsseeess 7

Georgia v. Brailsford, 3 U.S. 1 (1794) ........ccccccceeceeeeees 20

Gibbons v. Ogden, 22 U.S. 1 (1824).........:.c.csccerceeseseeees 9

Graham v. Connor, 490 U.S. 386 (1989)..................... 11

Gregory v. Ashcroft, 501 U.S. 452 (1991) ..........0...08. 5

Gulf Colo. & Santa Fe Ry. Co. v. Ellis, 165 U.S.

STITT TS isdsiciehdatcsiadabinounardseeduddeneennteniebadadpedmnaiasiiane 5

Hernandez v. United States, 785 F.3d 117 (5th

NE ID ci ciciin nies acaseadlicantdaibiecciasntismbdiaeaciiaaaasoniedel 11

Hudson v. Guestier, 8 U.S. 293 (1807).................cceeee 26

Hurtado v. People of California, 110 U.S. 516

Pec ksiddgieadsad Gebaidaceseakebidioumiandantaniaiouian 5, 11, 14, 30

ill

TABLE OF AUTHORITIES — Continued

Page

Jones v. Seward, 26 How. Pr. 34 (N.Y. Sup. Ct.

SG SE IC cs sciciinnaabiminnsnisgonpdecerisiteaneonpbiuuingsants 17, 18

Loan Association v. Topeka, 87 U.S. 655 (1875) ....... 8,9

Marbury v. Madison, 1 U.S. (Cranch) 137

PU sisc-enstcsseuinhasebeiden-asesniadoneeeaneietdamnnstetiinsdiinwinneiand 4, 13,14

McCulloch v. Maryland, 17 U.S. 159 (1819).............0 6

Olmstead v. United States, 277 U.S. 438 (1928)....16, 18

Perez v. Morig. Bankers Ass’n, 135 S. Ct. 1199

Ti a aaa nedibenitiedonbhante 15

Permoli v. Municipality No. 1 of the City of New

Crimes, 44 UB, GED CIBEB).....cceccrcccecsescscsescccccsssesceee 7

Reagan v. Farmers’ Loan & Trust Co., 154 US.

Lo alent 13, 15

Ry. Express Agency, Inc. v. New York, 336 U.S.

ER PS ER ae Ae Te ek eee mee 15

Screws v. United States, 325 U.S. 91 (1945).............. 13

Skiriotes v. Florida, 313 U.S. 69 (1941)............::ceceeeee 26

The Hamilton, 207 U.S. 398 (1907) .........:cccceceeeeerseneee 26

The Marianna Flora, 24 U.S. 1 (1826) ............... cc cccee 27

The Sapphire, 78 U.S. 164 (1870) ..........ccccceeeseeeeeneeeens 20

pf "G1 Qal By Ly y | A eeverererere 26

Terrett v. Taylor, 13 U.S. 43 (1815) ............ccceeeeeeeeeees 7,9

Union Pac. Ry. Co. v. Botsford, 141 U.S. 250

| __ AASRS RASS SoS ese 2G RE preven 12

United States v. Lee, 106 U.S. 196 (1882).............c0 30

iv

TABLE OF AUTHORITIES — Continued

Page

United States v. Nixon, 418 U.S. 683 (1974) .............. 14

United States v. Verdugo-Urquidez, 494 U.S. 259

SUIT scciscsocleeiinsbticadscscoseintesaanaiicesidommie si einaadedbalee tabi 3, 4, 28, 29

Vanhorne’s Lessee v. Dorrance, 2 U.S. 304 (1795)

cia laa ll a a 6

Weems v. United States, 217 U.S. 349 (1910) ............... 9

Wolff v. McDonnell, 418 U.S. 539 (1974) ...............0000. 10

Yick Wo v. Hopkins, 118 U.S. 356 (1886)........ 10, 11, 12

Youngstown Sheet & Tube Co. v. Sawyer, 343

IEE SicncnencscsuiteniaiCensicgstiinnantssssciabnatchenvansid 6

CONSTITUTIONAL PROVISIONS

Be I: GIN Bh eesccsrascedaccvcsisnososenne pisge aciaaianineavenh 7

Be is SEER © boca cccrscnsecnssccnscnsscensesenies _....passim

ee sc an pudenmetenenannsenniied 6,11

Se es MI IO 6c a cciecicnndiceapnpwnsaeieansnnenceech 8, 10

Te MI MIS TEIN gions catcsncemesiovsivnnsitncumednemiliitdbiihaiieh 13, 14

OTHER AUTHORITIES

1 Am. STATE PAPERS: CLAIMS (Washington D.C.,

Gleles BG BamSGR TBE) ..0<00cccssccscocesesssccccsesses 22, 23, 24

Fi i Be ID cettcicrscensicntnententonssccseins 19, 20

1 WILLIAM BLACKSTONE, COMMENTARIES ..............000000005 9

3 AM. STATE PAPERS: FOREIGN RELATIONS (Wash-

ington, D.C., Gales & Seaton 1832) ...............:...00000 19

¥

TABLE OF AUTHORITIES — Continued

Page

ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA

(H. Reeve trans., 7th ed., 1847) .................. 16, 17, 21

Guide to House Records: Chapter 6: Claims

1794-1946, U.S. NaT’L ARCHIVES, https://www.

archives.gov/legislative/guide/house/chapter-06-

claims.html (last visited Dec. 7, 2016).................... 21

Letter from Secretary of State James Madison

to Richard Soderstrom dated July 23, 1801........... 19

R.A. DOUGLAS-LITHGOW, DICTIONARY OF AMERICAN-

INDIAN PLACE & PROPER NAMES IN NEW ENG-

SRE seed. ORT Ae IE EB ar SD ER le 23

THE FEDERALIST No. 45 (James Madison).................... 5

THE FEDERALIST No. 47 (James Madison).................. 13

THE FEDERALIST No. 80 (Alexander Hamilton).......... 19

THE FEDERALIST No. 84 (Alexander Hamilton)............ 2

1

INTEREST OF THE AMICUS CURIAE'’

Restore the Fourth, Inc. (“Restore the Fourth”) is a

national, non-partisan civil liberties organization ded-

icated to the robust enforcement of the Fourth Amend-

ment to the U.S. Constitution. Restore the Fourth

believes that everyone is entitled to privacy in their

persons, homes, papers, and effects and that modern

changes in technology, governance, and law should fos-

ter—not hinder—the protection of this right.

To advance these principles, Restore the Fourth

oversees a network of local chapters, whose members

include lawyers, academics, advocates, and ordinary

citizens. Each chapter devises a variety of grassroots

activities designed to bolster political recognition of

Fourth Amendment rights. On the national level, Re-

store the Fourth also files amicus curiae briefs in sig-

nificant Fourth Amendment cases.’

+

1 This amicus curiae brief is filed with the written consent of

all parties in this case. No counsel for a party authored this brief

in whole or in part; nor did any person or entity, other than Re-

store the Fourth, Inc. and its counsel, contribute money intended

to fund the preparation or submission of this brief.

2 See, e.g., Brief of Amicus Curiae Restore the Fourth, Inc. in

Support of Plaintiff-Appellee Araceli Rodriguez, Rodriguez v.

Swartz, No. 15-16410 (9th Cir. filed May 7, 2016); Brief of Amicus

Curiae Restore the Fourth, Inc. in Support of Defendant-Appel-

lant Stavros M. Ganias, United States v. Ganias, No. 12-240-cr (2d.

Cir. filed July 29, 2015) (en banc).

2

SUMMARY OF THE ARGUMENT

The Constitution establishes a government of

laws, not men. For this reason, Alexander Hamilton re-

jected the view that the Constitution, as originally

drafted, needed to include a separate bill of rights: “the

Constitution is itself, in every rational sense, and to

every useful purpose, A BILL OF RIGHTS.” Hamilton

recognized that because the Constitution established

the total scope of power that government officials could

exercise, any addition of a bill of rights would only in-

vite “men disposed to usurp, a plausible pretense for

claiming ... power” that the Constitution otherwise

gave them no basis to claim.* As Hamilton ultimately

concluded, “why declare that things shall not be done

which there is no power to do?”

This case bears out the prescience of Hamilton’s

concern. On a hot summer day in 2010, U.S. border pa-

trol gent Jesus Mesa shot and killed 15-year-old

Sergio Hernandez—a Mexican citizen—without provo-

cation or warning while Sergio was playing with a

group of boys in a culvert straddling the U.S.-Mexico

border. Sergio’s family then sought justice for Sergio’s

death in the United States, suing Agent Mesa (inter

alia) in his individual capacity for damages. One of the

tort claims that Sergio’s family raised was that Agent

Mesa’s arbitrary use of lethal force violated the Fourth

$ THE FEDERALIST No. 84 (Alexander Hamilton) (capitalized

text in original).

* Td.

5 Id.

3

Amendment’s guarantee against unreasonable gov-

ernment seizures.

This claim spurred a fierce debate in the lower

courts over how to interpret the Fourth Amendment.

What troubled the lower courts was the fact that at the

time Sergio was killed, he was a Mexican citizen stand-

ing on Mexican soil (while Agent Mesa was standing

on U.S. soil). In United States v. Verdugo-Urquidez, a

plurality of this Court held that a Mexican national

who lacked significant voluntary ties to the United

States could not invoke the Fourth Amendment to

challenge a warrantless search of his private home in

Mexico by U.S. law enforcement. 494 U.S. 259, 275

(1990). Based on Verdugo-Urquidez, the lower courts

here found that Sergio’s family likewise could not in-

voke the Fourth Amendment given Sergio’s death in

Mexico and his lack of significant voluntary ties to the

United States.

This is Hamilton’s nightmare come to life. In draft-

ing the Fourth Amendment, the Framers sought to

limit “all invasions on the part of the government and

its employees of the sanctity of a man’s home and the

privacies of life.” Boyd v. United States, 116 U.S. 616,

630 (1886). Yet, because the Framers put this right on

paper as one retained by “the people,” the Fourth

Amendment has come to be viewed as a constructive

grant to U.S. officials of unlimited powers to search and

seize aliens outside the United States, since such al-

iens are not part of “the people.” See Verdugo-Urquidez,

494 U.S. at 275. This case now represents the logical

culmination of that view, with the lower courts finding

4

in effect that U.S. border patrol agents may arbitrarily

kill aliens on foreign soil without incurring any risk of

constitutional liability.

Restore the Fourth respectfully submits that such

a state of affairs demands a return to first principles.

Under those principles, the question that has to be an-

swered here is not whether the Fourth Amendment

protects a foreign alien killed by a U.S. border patrol

agent on foreign soil. Rather, the question is whether

the Constitution authorizes U.S. border patrol agents

to use lethal force arbitrarily against any person—no

matter the target’s identity, nationality, or territorial

location. And the answer to this question, as rooted in

this Court’s precedents since the Founding, is an une-

quivocal “no.”

The only question that then remains is what the

remedy should be when a U.S. official exceeds their

constitutional authority and injures another person.

“The very essence of civil liberty,” after all, is “the right

of every individual to claim the protection of the laws.”

Marbury v. Madison, 1 U.S. (Cranch) 137, 163 (1803)

(Marshall, C.J.). On this score, this nation’s early his-

tory reveals examples of U.S. officials being held liable

as individuals for damages when they conducted ille-

gal seizures targeting aliens beyond this country’s bor-

ders. This tradition counsels against applying the

Verdugo-Urquidez plurality opinion to this case.

¢

5

ARGUMENT

I. The Constitution is enforceable against all

U.S. officials who exceed their power.

A. All actions by U.S. officials must be au-

thorized by the Constitution.

The “first official action” of America was to

acknowledge the self-evident truths “that all men are

created equal, that they are endowed by their Creator

with certain unalienable rights, that among these are

life, liberty and the pursuit of happiness.” Gulf Colo. &

Santa Fe Ry. Co. v. Ellis, 165 U.S. 150, 159-60 (1897).

But the Declaration of Independence did more than

just affirm the existence of unalienable rights. It also

explained what was needed “to secure these rights”:

government by consent. For this reason, America has a

written constitution.

During the Founding era, “written constitutions

were deemed essential to protect the rights and liber-

ties of the people against the encroachments of power

delegated to their governments.” Hurtado v. People of

California, 110 U.S. 516, 531-32 (1884). The Framers

thus drafted the Constitution to ensure that the pow-

ers that were delegated to the federal government

were “few and defined.”* See Gregory v. Ashcroft, 501

U.S. 452, 457 (1991) (“The Constitution created a Fed-

eral Government of limited powers.”). As a result, it is

no exaggeration to say that “the Constitution is the sun

of the [American] political system, around which all

8 THe FEDERALIST No. 45 (James Madison).

6

Legislative, Executive and Judicial bodies must re-

volve.” Vanhorne’s Lessee v. Dorrance, 2 U.S. 304, 308

(1795).

Hence, the first question that must always be

asked whenever government officials injure private in-

dividuals is this: does the Constitution authorize the

government’s conduct in the first place? The Court’s

decision in the Steel Seizures Cases embodies this

point. At issue was a presidential order directing a

massive government seizure of privately-owned steel

mills in the heat of a nationwide labor strike. See

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,

583 (1952). The Court could have defined this case in

terms of whether the seizure order violated the mill-

owners’ Fourth Amendment right against unreasona-

ble seizures, or their Fifth Amendment right against

unjustified takings. See, e.g., id. at 631 (Douglas, J.,

concurring). Instead, the Court focused on whether the

Constitution gave the President the power to do what

he did in the first place. See id. at 582 (majority opin-

ion) (explaining that the Court was being asked to de-

cide “whether the President was acting within his

constitutional power”).

Such analysis demonstrates that fidelity to the

Constitution is about more than determining if the

Constitution expressly forbids the government from

doing something—e.g., abridging freedom of speech.

Fidelity to the Constitution also requires observing

that its enumeration of certain powers means that gov-

ernment “can exercise only the powers granted to it.”

McCulloch v. Maryland, 17 U.S. 159, 199 (1819). Put

7

another way, all government action must be authorized

by the Constitution and further accord with “the gen-

eral principles ... common to our free institutions.”

Fletcher v. Peck, 10 U.S. 87, 139 (1810). And based on

this rule, the Court has invalidated government con-

duct on many occasions—even when no express provi-

sion of the Constitution could be said to bar the

challenged government conduct.

Consider, for example, Terrett v. Taylor, 13 U.S. 43

(1815). Virginia passed a law confiscating “all the prop-

erty of the Episcopal churches in the respective par-

ishes of the state.” Id. at 48. Were such a law to be

passed today, it would undoubtedly be found to violate

the First Amendment’s protection of religious liberty.

But in 1815, the First Amendment was not understood

to apply to the states. See Permoli v. Municipality No.

1 of the City of New Orleans, 44 U.S. 589, 609 (1845)

(“The Constitution makes no provision for protecting

the citizens of the respective states in their religious

liberties. . . .”). And yet, the Court still found Virginia’s

church-property-seizure law unenforceable. See Ter-

rett, 13 U.S. at 55 (holding that Virginia’s law did not

divest private title of the lands at issue).

The Court reached this conclusion because neither

“the fundamental laws of every free government” nor

the “spirit and the letter of the [Clonstitution” gave

Virginia the power to do what it did. Jd. at 52. In the

same vein, the Court rejected the argument that be-

cause of the Revolution, “all the public property ac-

quired by the Episcopal churches ... became the

property of the state.” Jd. at 49. The Court noted that

8

before the Revolution, the church property at issue had

been privately purchased and “[i]t was not in the power

of the [C]rown to seize or assume it . .. unless by the

exercise of a power the most arbitrary, oppressive and

unjust.” Jd. at 49-50. And after the Revolution, Vir-

ginia “succeeded only to the rights uf the crown,” which

meant that Virginia was not grantea any new author-

ity to do what it did. Jd. at 50.

A similarly rigorous examination of government

power may be seen in Loan Association v. Topeka, 87

U.S. 655 (1875). The Court confronted a Kansas state

law that enabled towns and cities in Kansas “to take

the property of the citizen under the guise of taxation

... and use it in aid of the enterprises of others which

are not of a public character.” Jd. at 659. Such a law

today would likely invite close scrutiny under the Four-

teenth Amendment’s due process and equal protection

guarantees. The Court, however, tackled the law in

more basic terms: “unless the legislature of Kansas

had the right to authorize the counties and towns in

that State to levy taxes to be used in aid of [private]

manufacturing enterprises . . . for purposes of gain, the

law is void.” Id. at 660. The Court then proceeded to

“inquirle] whether such a power exists in the legisla-

ture of the State of Kansas.” Jd.

The Court found no such power existed. See id. at

664. The Court drew this conclusion from “[t]he theory

of our governments, State and National, [which] is op-

posed to the deposit of unlimited power anywhere.” Jd.

at 663. The Court further recognized “the limitations

on ... power which grow out of the essential

9

nature of all free governments”—limits “without which

the social compact could not exist, and which are re-

spected by all governments entitled to the name.” Jd.

And based on these limits, Kansas could not “lay with

one hand the power of the government on the property

of the citizen,” and then, with the other hand, bestow

that property “upon favored individuals to aid private

enterprises and build up private fortunes.” Jd. at 664.

This kind of government conduct was neither legisla-

tion nor taxation, but simple “robbery” perpetrated

“under legislative forms.” Id.

What cases like Loan Association and Terrett

demonstrate is that the Constitution limits the exer-

cise of all government power, even when the Constitu-

tion may not expressly identify the relevant limit (e.g.,

a bar on government taxation for private gain). This

accords with the “predominant political impulse” of the

Framers, which was a “distrust of power” and “in-

sistance] on constitutional limitations against its

abuse.” Weems v. United States, 217 U.S. 349, 372

(1910). The Framers recognized that such limits were

essential to advance the Constitution’s “great and par-

amount purpose”: to unite our nation’s “wealth and

power” for “the protection of the humblest individual.”

Gibbons v. Ogden, 22 U.S. 1, 223 (1824) (Johnson, J.,

concurring). As such, the Constitution stands against

any state of affairs that would cede to U.S. officials “a

power of destroying at pleasure without the direction

of laws.”’

7 1 WILLIAM BLACKSTONE, COMMENTARIES *133.

10

B. The Constitution does not authorize

the arbitrary use of lethal force.

In establishing a government of limited powers,

the Constitution leaves no room for the exercise of

arbitrary power. In Yick Wo v. Hopkins, the Court made

this clear in confronting a city’s arbitrary use of gov-

ernment licensing power to harass Chinese-owned

laundries. 118 U.S. 356, 373-74 (1886). The Court

noted that “the very idea that one man may be com-

pelled to hold his life . . .or any material right essential

to the enjoyment of life, at the mere will of another,

seems to be intolerable in any country where freedom

prevails.” Jd. at 370.

Of course, the rejection of arbitrary power under

the Constitution is most often associated with the due

process guarantees of the Fifth and Fourteenth

Amendments. “The touchstone of due process is protec-

tion of the individual against arbitrary action of gov-

ernment.” Wolff v. McDonnell, 418 U.S. 539, 558 (1974)

(citation omitted). And this makes sense insofar as the

lineage of due process may be traced back to Magna

Carta and the many volumes of law that have been

dedicated to this term—all of which have led “the good

sense of mankind” to conclude that the Constitution’s

due process guarantees are meant “to secure the indi-

vidual from the arbitrary exercise of the powers of gov-

ernment.” Bank of Columbia v. Okley, 17 U.S. 122, 127

(1819).

But there is also good reason to believe that the

Constitution does not permit the exercise of arbitrary

11

power regardless of its due process guarantees. In Yick

Wo, the Court nodded to this reality: “When we con-

sider the nature and the theory of our institutions of

government, the principles upon which they are sup-

posed to rest, and review the history of their develop-

ment, we are constrained to conclude that they do not

mean to leave room for the play and action of purely

personal and arbitrary power.” 118 U.S. at 370.

This observation matters today given how mired

modern constitutional law has become in trying to fig-

ure out which Bill of Rights provision should be said to

govern a given instance of arbitrary power. Compare,

e.g., Graham v. Connor, 490 U.S. 386, 388-89, 395

(1989) (majority opinion) (indicating that an excessive

force claim is “properly analyzed” under the Fourth

Amendment rather than “under a substantive due pro-

cess standard”), with, id. at 399-400 (Blackmun, J.,

concurring in part) (refusing to “foreclos[e] the use of

substantive due process analysis”). The present case is

no exception, with the Fifth Circuit getting mired in a

heated debate over whether the Fifth Amendment ver-

sus the Fourth Amendment protected Sergio Hernan-

dez from being arbitrarily killed by a U.S. border patrol

agent. See Hernandez v. United States, 785 F.3d 117,

133-34 (5th Cir. 2015) (Prado, J., concurring).

In earlier eras, however, this Court took a much

simpler approach: the Constitution did not allow for

arbitrary power because “(a]rbitrary power ... is not

law, whether manifested as the decree of a personal

monarch or of an impersonal multitude.” Hurtado, 110

12

U.S. at 536. Law, by contrast, is “the definition and lim-

itation of power.” Yick Wo, 118 U.S. at 370. To speak of

a government of limited powers, then, is to speak of “a

government of laws, and not of men.” Jd. And under a

government of laws, courts are “constrained to pro-

nounce ... inoperative and void” any government ac-

tion that “clothes” a person with power but then “lays

down no rules” to ensure the “impartial execution” of

this power or to prevent “partiality and oppression.” Jd.

at 373.

In no arena does this principle matter more than

when it comes to the use of lethal force. “No right is

held more sacred, or is more carefully guarded, by the

common law, than the right of every individual to the

possession and control of his own person, free from all

restraint or interference of others, unless by clear and

unquestionable authority of law.” Union Pac. Ry. Co. v.

Botsford, 141 U.S. 250, 251 (1891). And since arbitrary

power is not law, nothing in the Constitution—which

establishes a government of law—can be said to au-

thorize, or even tolerate, the arbitrary use of lethal

force.

By the same token, “[u]ncontrolled search and sei-

zure is one of the first and most effective weapons in

the arsenal of every arbitrary government.” Brinegar

v. United States, 338 U.S. 160, 180 (1949) (Jackson, J.,

dissenting). The Framers recognized this all too well

by virtue of “[t]he struggles against arbitrary power in

which they had been engaged for more than twenty

years.” Boyd v. United States, 116 U.S. 616, 630 (1886).

This bitter experience taught the Framers that “[t]he

13

accumulation of all powers ...in the same hands...

[was] the very definition of tyranny.”* The arbitrary

use of lethal force also fits this definition, reflecting an

accumulation of the powers of “prosecutor, jury, judge,

and executioner” in the hands of a single government

official. Screws v. United States, 325 U.S. 91, 106 (1945)

(plurality op.). Thus, under the Constitution—under “a

government of law, not a government of men”—no gov-

ernment official may wield such power, or escape legal

liability for doing so. Reagan v. Farmers’ Loan & Trust

Co., 154 U.S. 362, 399 (1894).

C. No USS. official is above the law.

The Constitution is the “supreme Law of the Land”

and all government power must be exercised in accord-

ance with this rule. U.S. Const., art. VI. Every govern-

ment official in America is thus charged with the duty

of exercising only those powers granted to them by the

Constitution or in accordance with the Constitution.

See Marbury, 1 U.S. at 179. Holding government offi-

cials to that duty, in turn, is the very essence of the rule

of law—a concept that “has been understood since

Greek and Roman times to mean that a ruler must be

subject to the law in exercising his power and may not

govern by [mere] will alone.” Dep’t of Transp. v. Ass’n of

Am. R.R., 135 S. Ct. 1225, 1242 (2015) (Thomas, J., con-

curring).

Hence, under the Constitution, no government of-

ficial is above the law. This is true of presidents. See,

8 THE FEDERALIST No. 47 (James Madison).

14

e.g., United States v. Nixon, 418 U.S. 683, 715 (1974)

(rejecting the notion that “a President is above the

law”). It is also true of ordinary administrative offi-

cials, like Postal Service employees. See, e.g., Am. Sch.

of Magnetic Healing v. McAnnulty, 187 U.S. 94, 108

(1902) (“That the conduct of the Post Office is a part of

the administrative department of the government is

entirely true, but... . [t]he acts of all its officers must

be justified by some law ....”). The only remaining

question is how to enforce this rule of law against U.S.

officials who exceed the limited power given to them by

the “Constitution, and the laws of the United States

which shall be made in pursuance thereof.” U.S. Const.,

art. VI.

The Court, however, settled this question over two

centuries ago in observing that “[i]f one of the heads of

departments commits any illegal act, under colour of

his office, by which an individual sustains an injury, it

cannot be pretended that his office alone exempts him

from being sued.” Marbury, 1 US. at 170. Indeed, the

enforcement of “the limitations imposed by our consti-

tutional law .... by judicial process is the device of

self-governing communities to protect ... against the

violence of public agents transcending the limits of

lawful authority.” Hurtado, 110 U.S. at 536.

This has led the Court to reject various legal con-

trivances meant to defeat this principle. For example,

the Court has noted that when “officers charged with

the administration of [a] valid tax law .. . . go beyond

the powers thereby conferred, . . . the fact that the[se]

15

[officers] are assuming to act under a valid law will not

oust the courts of jurisdiction to restrain their exces-

sive and illegal acts.” Reagan, 154 US. at 390-91. Ra-

ther, it still remains the case that when an “official

violates the law to the injury of an individual the

courts generally have jurisdiction to grant relief.” Am.

Sch. of Magnetic Healing, 187 U.S. at 108.

And that is how the Constitution is supposed to

work. “The Legislature and Executive may be swayed

by popular sentiment to abandon the strictures of the

Constitution or other rules of law. But the Judiciary,

insulated from both internal and external sources of

bias, is duty-bound to exercise independent judgment

in applying the law.” Perez v. Mortg. Bankers Ass’n, 135

S. Ct. 1199, 1219 (2015) (Thomas, J., concurring). The

exercise of such judgment, in turn, checks the expan-

sion of arbitrary power otherwise made possible by its

selective application. See Ry. Express Agency, Inc. v.

New York, 336 U.S. 106, 112—13 (1949) (Jackson, J., con-

curring) (“[T]here is no more effective practical guar-

anty against arbitrary and unreasonable government

than to require that the principles of law which offi-

cials would impose upon a minority must be imposed

generally.”).

Now consider what this means in the context of

government searches and seizures—including the use

of lethal force. “[W]e must remember that the author-

ity which we concede to conduct searches and seizures

without warrant may be exercised by the most unfit

and ruthless officers as well as by the [most] fit and

16

responsible.” Brinegar, 338 U.S. at 182 (Jackson, J., dis-

senting). We must also remember that “[i]n a govern-

ment of laws, [the] existence of the government will be

imperiled” unless government officials who exceed

their power are held to account—especially those who

kill without reason. Olmstead v. United States, 277 U.S.

438, 485 (1928) (Brandeis, J., dissenting). In this re-

gard, private suits against government officials in

their individual capacity have been an integral part of

this nation’s dedication to ensuring that no govern-

ment official ever becomes “a law unto himself.” Id.

II. In the Founding Era, government officials

could always be held individually liable

for illegal seizures, regardless of the sei-

zure’s location or the victim’s nationality.

When Alexis de Tocqueville first visited America

in the 1830s, one aspect of the young nation that

quickly drew his attention was “[t]he right granted to

the courts of justice of judging the agents of the execu-

tive government, when they have violated the laws.”

He was surprised to find that this right was “so natural

a one that it cannot be looked upon as an extraordinary

privilege.”'° He was also surprised to find that this

right, far from weakening “the springs of government,”

had actually “increased ... that respect which is due

® ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 107 (H.

Reeve trans., 7th ed., 1847).

© Id.

17

to the authorities, and at the same time .. . rendered

those who are in power more scrupulous of offending

public opinion.”

These observations speak to a broader historical

point: that for much of this nation’s history, private tort

suits against U.S. officials as individuals were the prin-

cipal means of enforcing constitutional limits on gov-

ernment power, including the Constitution’s general

disallowance of arbitrary force. A case like Jones uv.

Seward puts this in perspective. 26 How. Pr. 34 (N.Y.

Sup. Ct. Oct. 19, 1863). A U.S. diplomat sued U.S. Sec-

retary of State William Seward for damages arising

from false imprisonment. See id. at 34. The minister

contended that Seward had illegally ordered the diplo-

mat’s arrest and jailing “under authority .. . from the

President.” Jd. Seward subsequently asked the state

trial court to transfer the action to federal court be-

cause he intended to defend himself by arguing that

his alleged conduct was authorized under the Consti-

tution. Id. at 35.

The state trial court rejected Seward’s motion. See

id. at 44. The court explained that it could find no “ap-

pearance or color of substance” in Seward’s proposed

defense: that the Constitution “has invested its chief

executive officer with power to arrest or imprison, or to

authorize another to arrest or imprison, any person not

subject to military law, at any time” without judicial

process. Jd. at 35-36. Nothing in the Constitution could

“be tortured into the conferring of such a power on the

= =.

18

President in his civil capacity.” Jd. at 36. Indeed, it

would be “the grossest contradiction and strangest

anomaly to say that absolute and unlimited power .. .

can be implied from a [C]onstitution which avowedly

gives no power to any department of the government

that is not specifically set forth.” Jd. The court thus

found that “[t]he only questions in this action worthy

of consideration, and which can be entertained, do not

arise under the (Clonstitution .. . but are fitly within

the jurisdiction of this court.” Jd. at 44.

Such analysis reflects an original understanding

of how abuses of government power were meant to be

processed vis-a-vis the Constitution: in short, above all

else, U.S. officials could always be held liable in their

individual capacity for exceeding their proper author-

ity or engaging in unlawful acts. After all, “[wjhen

these unlawful acts were committed, they were crimes

only of the officers individually. The Government was

innocent, in legal contemplation; for no federal official

is authorized to commit a crime on its behalf.”

Olmstead, 277 U.S. at 483 (Brandeis, J., dissenting).

But what if a U.S. official’s unlawful acts are tar-

geted at a foreigner rather than a citizen? Did the

Framers believe that foreigners had less of a right to

sue U.S. officials for tort damages than American citi-

zens? Neither the history of the Constitution nor this

Court’s jurisprudence supports such a view. Rather, in

arguing for a robust federal judiciary, Alexander Ham-

ilton noted that “(t]he Union will undoubtedly be an-

swerable to foreign powers for the conduct of its

members. And the responsibility for an injury ought

19

ever to be accompanied with the faculty of preventing

it.” This led Hamilton to conclude that because “the

denial or perversion of justice by the sentences of

courts . . .is with reason classed among the just causes

of war, it will follow that the federal judiciary ought to

have cognizance of all causes in which the citizens of

other countries are concerned.”**

After the Constitution was ratified, American

leaders repeatedly affirmed the full measure of justice

available to foreigners in U.S. courts. For example, in

addressing Danish concerns about the U.S. navy’s sei-

zure of three Danish vessels abroad, Secretary of State

James Madison explained that “general usage requires

that redress should be first prosecuted judicially” and

then touted “the scrupulous regard to the rights of for-

eigners by which [American] courts of justice are dis-

tinguished.” U.S. Attorney General Richard Rush later

reinforced this view in a formal opinion on the “judicial

privileges of foreigners.”'® He declared that the “courts

of the United States in every State are at all times

open to the subjects of a foreign power in friendly rela-

tions with them” and that such foreign subjects were

“entitled to claim the benefit of every legal remedy in

2 THe FEDERALIST No. 80 (Alexander Hamilton).

3 Jd.

‘4 Letter from Secretary of State James Madison to Richard

Soderstrom dated July 23, 1801, 3 AM. STATE PAPERS: FOREIGN RE-

LATIONS 345 (Washington, D.C., Gales & Seaton 1832), available

online, http://bit.ly. 2haVZGQ.

‘8 1 Op. Att’y Gen. 192, 193 (1816).

20

as ample a manner as could be enforced by any citizen

of the United States.”

Finally, there is this Court’s decision in The Sap-

phire, in which the Court spoke directly to whether the

French emperor could sue in federal court. 78 U.S. 164,

167 (1870). The Court replied: “On this point not the

slightest difficulty exists. A foreign sovereign, as well

as any other foreign person, who has a demand of a

civil nature against any person here, may prosecute it

in our courts. To deny him this privilege would mani-

fest a want of comity and friendly feeling.” Jd.

Such a denial also would not be in keeping with

“the great and leading principles of a free and equal

national government,” one of which is “to ensure jus-

tice to all.” Chisholm v. Georgia, 2 U.S. 419, 477 (1793)

(Jay, C.J.). To this end, “what is it to justice, how many,

or how few; how high, or how low; how rich, or how

poor; the contending parties may chance to be? Justice

is indiscriminately due to all, without regard to num-

bers, wealth, or rank.” Georgia v. Brailsford, 3 U.S. 1,

4—5 (1794) (Jay, C.J.). The same may be said about a

person’s citizenship, which helps to explain why the

early legal history of our nation presents examples of

foreigners holding U.S. officials individually liable for

illegal seizures—even when the seizure took place out-

side the territory of the United States.

- a

21

A. The early history of federal claims law

indicates that U.S. officials could al-

ways be held individually liable for any

illegal seizure they committed.

Gauging how the Framers would have viewed a

foreigner’s tort suit against a U.S. official for injuries

caused by an illegal seizure beyond the country’s bor-

ders is no easy task. History limits this inquiry to the

extent that at the time of the Founding and in the dec-

ades that followed, there was no border patrol or fed-

eral law enforcement agency like the FBI empowered

to engage in seizures either inside or outside the

United States. To the contrary, as de Tocqueville ob-

served during his 1830s visit, the means then available

to the authorities “for the discovery of crimes and the

arrest(|] of criminals [were] few. A state police d[id] not

exist and passports [were] unknown.”"”

Nevertheless, there are two sources of law from

the Founding Era that provide insight on how the

Framers understood the right of foreigners to chal-

lenge injurious extraterritorial conduct by U.S. offi-

cials. One of those sources is federal claims law, which

is reflected in a series of reports created by the U.S.

Committee on Claims, “one of the oldest standing

committees in the United States House of Representa-

tives.”"® The Committee was established on November

13, 1794, and its duty was to “take into consideration

“ ALEXIS DE TOCQUEVILLE, supra note 9, at 98.

‘8 Guide to House Records: Chapter 6: Claims 1794-1946,

U.S. NaT’L ARCHIVES, https://www.archives.gov/legislative/guide/

house/chapter-06-claims.htm! (last visited Dec. 7, 2016).

22

all petitions and matters or things touching claims and

demands on the United States ... and to report their

opinion thereon.”

In this capacity, the Committee often considered

claims by U.S. officials seeking indemnification for tort

judgments entered against them as individuals. The

Committee’s responses to these claims, in turn, reveal

several instances of U.S. officials or agents being held

liable for illegal seizures even when a foreigner was

the victim and/or the seizure happened to occur out-

side the United States.

One notable example of this may be seen in Claim

Report No. 350, “Indemnity to a Teamster for Damages

Awarded Against Him” (Feb. 7, 1817).” The claim was

pressed by a New York merchant who was hired as a

teamster by a U.S. army officer in 1814, during the

midst of the War of 1812 between the United States

and Britain. The teamster rode with the colonel on his

march from the United States into Lower Canada—a

British province. Once in Lower Canada, the officer or-

dered the teamster to seize a puncheon of rum from a

British subject’s private home and then carry it across

the U.S.-Canada border to a guard-house in Vermont.

After following these orders, the teamster was sued by

7

*° See 1 Am. Stare Papers: Cams 523 (Washington D.C.,

Gales & Seaton 1834), available online, http://bit.ly/2gIlvDvn.

23

the British subject for conversion and was ultimately

required to pay damages to the subject.?!

The teamster asked the Claims Committee for in-

demnification, but the Committee refused (though

Congress later agreed to pay). The Committee based

this decision on the fact that the “United States have

in no instance, while at war, justified the seizure or

capture of private property belonging to a citizen or

subject of the enemy.” Thus, presuming the rum was

the private property of a British citizen, the army of-

ficer’s arbitrary seizure of it “was an offense in the of-

ficer, and a violation of private right, for which the

individual injured would be entitled to damages.” The

Claims Committee did not appear to care that the sei-

zure took place in Lower Canada during a time of war.

Now consider Claim Report No. 387, “Indemnity to

Major Gen. Brown Against Certain Judicial Proceed-

ings” (Feb. 9, 1818).” Jacob Brown, a major general

in the U.S. Army, sought indemnity for a judgment

entered against him by a New York state court. The

judgment arose from Brown’s arrest of a man named

Henry Utley while Brown’s forces were located on the

*+ The Claims Committee’s report states that the teamster

was “arrested at the suit” of the British subject in “Missique bay.”

This appears to be a reference to a location in Vermont, indicating

that the British subject sued in an American court. See R.A.

DOUGLAS-LITHGOW, DICTIONARY OF AMERICAN-INDIAN PLACE &

PROPER NAMES IN NEW ENGLAND 91 (1909) (identifying “Missique

Bay” as the name of a place in Vermont).

#2 See 1 AM. STATE PAPERS: CLAIMS, supra note 20, at 551,

available online, http://bit.ly.2h4npjT.

24

Canadian frontier. Brown had Utley arrested on suspi-

cion of spying for the British; it is unclear what Utley’s

citizenship was at the time. Utley subsequently sued

Brown in New York state court for assault, battery, and

false imprisonment and was awarded damages. The

Claims Committee found that Brown “acted only as a

prudent officer would have done in the arrest of Utley”

and agreed that Brown should be indemnified. The

Committee’s analysis did not turn on where the arrest

took place or whether the arrestee was an American.

What these examples reveal is that the Claims

Committee was singularly focused on arbitrariness in

deciding whether U.S. officials were entitled to indem-

nification on court judgments arising from government

seizures. In short, if a U.S. official had acted arbitrarily

(i.e., without authority) then he alone was liable for his

conduct; the United States would not indemnify him.

But if a U.S. official had acted prudently, then indem-

nification was possible. In this calculus, an injured

party’s nationality or the location of the seizure was

irrelevant—a point the Claims Committee articulated

at length in Claim Report No. 560, “Goods in Canada,

Belonging to a Merchant in New York, Captured by the

Troops of the United States” (Dec. 21, 1821):

If ...it was lawful for [a U.S. official] to take

the enemy’s property in the country of the en-

emy, the committee think it would be equally

so for him to take the property of our own cit-

izens found in the country of the enemy....

73 1 Am STATE PAPERS: CLAIMS, supra note 20, at 793, availa-

ble online, http://bit.ly/2hem&rP.

25

On the other hand, if it was not lawful to take

... the property either of the enemy or our

own citizens, the committee think the taking

... fis] an act performed on [the official’s] own

personal responsibility, for which he alone. . .

is liable... .

This comprehensive understanding of U.S. officer

liability fits with this Court’s observation that “where

an individual is sued in tort . . . to which his defense is

that he has acted under the orders of the government,”

this defense requires the individual to “show that his

authority was sufficient in law to protect him.” Cun-

ningham v. Macon & Brunswick R.R. Co., 109 U.S. 446,

452 (1883). The Court did not further declare that this

show-of-authority would be unnecessary if the tort

crossed a border or the injured party was not a citizen.

B. The early history of federal maritime

law indicates that U.S. officials could

always be held individually liable for

any illegal seizure they committed.

The early history of federal mariiime law also pro-

vides useful insight on how the Framers would have

reacted to a foreigner’s tort suit against a U.S. official

for injuries caused by an illegal seizure beyond U.S.

territory. In particular, there are two key principles

that can be discerned from this history that are helpful

here: (1) that while the high seas are a jurisdictional

no-man’s-land, every vessel on the high seas is still an-

swerable to its home nation; (2) that in exercising

26

power on the high seas, a U.S. vessel’s captain owes a

duty of reasonableness to every other vessel.

The Court’s 1807 decision in Hudson v. Guestier

speaks to the first principle: ongoing national control

over vessels, even when situated on the high seas. 8

U.S. 293 (1807) (Marshall, J.). This principle was ex-

plained in the context of addressing whether any court

in the world could take a vessel captured on the high

seas away from its captor, or whether only the courts

of the captor’s nation had jurisdiction to do this. See id.

at 293-94. The Court determined that the latter was

true: a vessel “lawfully acquired under the authority of

a sovereign state could not be divested by the tribunals

of [another] country into whose ports the captured ves-

sel was brought.” Jd. at 297.

In supporting this decision, the Court conceded

that “cruisers are often commanded by men who do not

feel a due respect for the laws, and who are not of suf-

ficient responsibility to compensate the injuries their

improper conduct may occasion.” Id. at 296. The Court

then emphasized that such cruisers “must [still] be

considered as officers commissioned by their sovereign

to make a seizure in the particular case, and to be

ready to obey the legitimate mandate of the sovereign

directing a restitution.” Jd. In short, a vessel on the

high seas could properly be regarded as an extension

“of the territory” of its home nation, The Hamilton, 207

U.S. 398, 403 (1907), thus preserving the home nation’s

authority to “govern the conduct of its citizens on the

high seas.” Skiriotes v. Florida, 313 U.S. 69, 79 (1941).

27

The second helpful principle revealed by the early

history of American maritime law is that U.S. vessel

commanders owe a duty of reasonableness in dealing

with the vessels of other nations on the high seas. This

may be seen in The Marianna Flora, 24 U.S. 1, 41-47

(1826) (Story, J.). While patrolling the high seas, an

American cruiser encountered a Portuguese ship and

drew close to ascertain whether the ship was in dis-

tress. See id. Fearing the American cruiser to be a pi-

rate, the Portuguese ship opened fire, prompting the

American cruiser to return fire. See id. The American

cruiser eventually captured the Portuguese ship and

attempted to forfeit her in a U.S. court. See id. The

court rejected the forfeiture and ordered the com-

mander of the American cruiser, Lieutenant Stockton,

to pay damages. See id. On appeal, the circuit court re-

versed the award, leading the owners of the Portu-

guese ship to appeal to this Court to reinstate the

damages award. See id.

This Court proceeded to consider “what are the

rights and duties of armed [ships], and other ships,

navigating the ocean in time of peace.” Jd. at 42. The

Court found that upon the ocean in peacetime, “all pos-

sess an entire equality. It is the common highway of

all.” Id. The Court also found that ships like the Amer-

ican cruiser, being authorized “to arrest pirates, and

other public offenders,” were likewise entitled to ap-

proach other vessels at sea “for the purpose of ascer-

taining their real characters.” Id. at 43.

This left only the question of how Lieutenant

Stockton should have responded to the mistaken salvo

28

fired by the Portuguese ship. On this score, the Court

found “{t]he real duty imposed upon Lieutenant Stock-

ton was ... to exercise an honest and fair discre-

tion on the subject, and to obtain such explanations

as might guide his judgment.” Jd. at 51 (bold added).

And that defeated any claim for damages against him,

since it was “conceded on all sides ... that he acted

with honorable motives.” Jd. at 52. By contrast, “[iJf

Lieutenant Stockton had acted with gross negligence

or malignity, and with a wanton abuse of power, there

might be strong grounds on which to rest this claim of

damages.” Id.

The Court thus affirmed the principle that reason

and respect for the inherent rights of others are the

critical lodestars for determining the individual liabil-

ity of U.S. officials. That principle can also be seen in a

later maritime decision by this Court indicating that

an American vessel that violates American laws on the

high seas to the injury of another vessel is liable no

matter what the nationality of the other vessel hap-

pens to be. Specifically, in The Scotia, the Court af-

firmed the liability of an American ship for colliding

with a British ship on the high seas—a collision caused

by the American ship’s failure to display the correct

lights required under American navigation laws. 81

US. 170, 183-89 (1871).

The Court noted that American navigation laws

“wore intended to secure the safety of life and property,

as well as the convenience of commerce.” Jd. at 185.

With this in mind, the Court reasoned that even if

these laws could not be said to govern “the ships and

29

people of other nations,” these laws were “at least de-

signed for the security of the lives and property of our

own people.” Jd. In that regard, they operated as rules

of reason—ones that were “as useful and as necessary

on the ocean as they are upon inland waters.” Id. This

prompted the Court to ask: “How, then, can our courts

ignore [these laws] in any case? Why should it ever be

held that what is a wrong when done to an American

citizen, is right if the injured party be an Englishman?”

Id.

The present case beckons the same question: why

should it ever be held that a U.S. official’s arbitrary use

of lethal force is an actionable constitutional violation

when done to an American citizen, but is not actiona-

ble, and thereby excused, when done to a Mexican na-

tional standing on Mexican soil? The relevant abuse is

not rendered less arbitrary by where it transpired or

the nationality of the person injured by it. And the

early history of federal claims law and federal mari-

time law stand for the opposite view: that individual

liability attaches to U.S. officials for all illegal seizures,

no matter the location of the seizure or the nationality

of the victim. The Court should take that history into

account in considering the facts of this case—facts that

do not bear any meaningful resemblance to those con-

sidered by this Court in United States v. Verdugo-Ur-

quidez, 494 U.S. 259 (1990).

30

III. The plurality opinion in Verdugo-Urquidez

should not be followed in Hernandez.

In Verdugo-Urquidez, a plurality of this Court held

that the Fourth Amendment did not apply to the war-

rantless search of an individual’s home by U.S. officials

where the individual “was a citizen and resident of

Mexico with no voluntary attachment to the United

States, and the place searched was located in Mexico.”

Id. at 274-75 (plurality op.). Based on this holding, the

Fifth Circuit here found that the Fourth Amendment

could not be invoked to hold a U.S. border patrol agent

liable for arbitrarily killing a 15-year-old Mexican

teenager on Mexican soil. See Hernandez, 785 F.3d at

119 (en banc).

The Verdugo-Urquidez plurality opinion, however,

has no proper application in this case. The Fourth

Amendment claim at issue here is not about a criminal

defendant attempting to suppress evidence in the face

of a drug-trafficking prosecution. Rather, the Fourth

Amendment claim at issue here implicates the very

heart of “our institutions of government” and the rem-

edy that these institutions have always provided to ad-

dress “the play and action of purely personal and

arbitrary power”: a claim for damages against The of-

fending U.S. official in his individual capacity. Yick Wo,

118 US. at 370.

With this in mind, the Court now has before it an-

other path to affirm that the Hernandez family may

hold the U.S. official who arbitrarily killed their son li-

able for this conduct—a path that does not turn on

31

extraterritorial application of the Bill of Rights or

parsing the connectedness of foreigners with the

United States. This path instead focuses on whether

the Constitution authorized the U.S. border patrol

agent in this case to do what he did: arbitrarily use le-

thal force against an unarmed, defenseless teenage

boy. No such authority exists. The Hernandez family is

therefore entitled to hold the agent individually liable

for tort damages—a proposition that is supported by

the early history of federal claims law and federal mar-

itime law.

¢

CONCLUSION

The Constitution “was made for an undefined and

expanding future, and for a people gathered and to be

gathered from many nations and of many tongues.”

Hurtado v. People of California, 110 U.S. 516, 530-31

(1884). In that spirit, the Hernandez family has come

to this nation’s courts seeking to hold a U.S. official ac-

countable for his arbitrary use of lethal force—a power

not given to him by the Constitution. “In situations of

abuse, an action for damages against the responsible

official can be an important means of vindicating con-

stitutional guarantees.” Butz v. Economu, 438 U.S. 478,

506 (1978). That is especially true for the constitu-

tional guarantee at stake here: that “[a]ll the officers

of the government, from the highest to the lowest, are

creatures of the law, and are bound to obey it.” United

States v. Lee, 106 U.S. 196, 220 (1882).

32

The rule must be discharged.

Respectfully submitted,

MAHESHA P. SUBBARAMAN

Counsel of Record

SUBBARAMAN PLLC

222 S. 9th St., Ste. 1600

Minneapolis, MN 55402

(612) 315-9210

mps@subblaw.com

Counsel for Amicus Curiae

Restore the Fourth, Inc.

Dated: December 9, 2016