Updated:
September 14, 2017

Whether the parents of a 15-year old Mexican boy who was fatally shot by a United States Border Patrol Agent can bring a Bivens action against the Agent for using deadly force in violation of the Fourth and Fifth Amendments.

This case stems from the fatal shooting by a Border Patrol agent of an unarmed 15-year-old Mexican boy, Sergio Adrian Hernandez Guereca.  At the time of the shooting, the Border Patrol agent was standing in the United States, while Sergio was located across the border in Mexico.  Sergio’s parents brought a Bivens action alleging that the Border Patrol agent is liable for using deadly force against Sergio in violation of the Fourth and Fifth Amendments.  The case presents questions regarding the extraterritorial application of the Constitution, as well as qualified immunity and the availability of Bivens remedies, similar to those in Rodriguez v. Swartz, a cross-border shooting case being litigated by the ACLU and pending in the Ninth Circuit. 

The ACLU Immigrants’ Rights Project, ACLU of Texas, ACLU of Arizona, ACLU of New Mexico, and ACLU of San Diego & Imperial Counties filed an amicus brief arguing, among other things, that 1) the possibility of criminal charges against a Border Patrol agent does not provide an adequate alternative remedial scheme sufficient to outweigh the need for a civil remedy under Bivens, 2) the extraterritorial application of the Fourth and Fifth Amendments is governed by the functional “impractical and anomalous” test reaffirmed in Boumediene v. Bush, 553 U.S. 723 (2008), 3) the Fifth Circuit below applied the wrong legal standard by only considering whether Sergio had “significant voluntary connections” to the United States—a test that is particularly inappropriate in the context of a cross-border shooting, and 4) the Court should remand the case to permit the lower court to apply the correct test in the first instance.

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