Hernandez v. United States

Decision Date24 April 2015
Docket Number12–50217,Nos. 11–50792,12–50301,s. 11–50792
Citation785 F.3d 117
PartiesJesus C. HERNANDEZ, Individually and as the surviving father of Sergio Adrian Hernandez Guereca, and as Successor–in–Interest to the Estate of Sergio Adrian Hernandez Guereca; Maria Guadalupe Guereca Bentacour, Individually and as the surviving mother of Sergio Adrian Hernandez Guereca, and as Successor–in–Interest to the Estate of Sergio Adrian Hernandez Guereca, Plaintiffs–Appellants v. UNITED STATES of America; United States Department of Homeland Security; United States Bureau of Customs and Border Protection; United States Border Patrol ; United States Immigration and Customs Enforcement Agency; United States Department of Justice, Defendants–Appellees. Jesus C. Hernandez, Individually and as the surviving father of Sergio Adrian Hernandez Guereca, and as Successor–in–Interest to the Estate of Sergio Adrian Hernandez Guereca; Maria Guadalupe Guereca Bentacour, Individually and as the surviving mother of Sergio Adrian Hernandez Guereca, and as Successor–in–Interest to the Estate of Sergio Adrian Hernandez, Plaintiffs–Appellants v. Jesus Mesa, Jr., Defendant–Appellee. Jesus C. Hernandez, Individually and as the surviving father of Sergio Adrian Hernandez Guereca, and as Successor–in–Interest to the Estate of Sergio Adrian Hernandez Guereca; Maria Guadalupe Guereca Bentacour, Individually and as the surviving mother of Sergio Adrian Hernandez Guereca, and as Successor–in–Interest to the Estate of Sergio Adrian Hernandez, Plaintiffs–Appellants v. Ramiro Cordero; Victor M. Manjarrez, Jr., Defendants–Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Robert C. Hilliard, Esq., Rudy O. Gonzales, Jr., Marion M. Reilly, Hilliard Munoz Gonzales, L.L.P., Cristobal Miguel Galindo, Attorney, Houston, TX, Steve D. Shadowen, Esq. (argued), Hilliard & Shadowen, L.L.C., Mechanicsburg, PA, for PlaintiffsAppellants.

Henry Charles Whitaker (argued), Helen Louise Gilbert, Esq., Daniel Joseph Lenerz, Esq., U.S. Department of Justice, Washington, DC, Harold Edwin Brown, Jr., Esq., Assistant U.S. Attorney, U.S. Attorney's Office, San Antonio, TX, Zachary Carl Richter, Assistant U.S. Attorney, U.S. Attorney's Office, Austin, TX, for United States.

Randolph J. Ortega (argued), Louis Elias Lopez, Jr., for Jesus Mesa, Jr.

Appeals from the United States District Court for the Western District of Texas.

Before STEWART, Chief Judge, and JOLLY, DAVIS, JONES, SMITH, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, and COSTA, Circuit Judges.*

Opinion

PER CURIAM:

We rehear this matter en banc, see Hernandez v. United States, 771 F.3d 818 (5th Cir.2014) (per curiam) (on petitions for rehearing en banc), to resolve whether, under facts unique to this or any other circuit, the individual defendants in these consolidated appeals are entitled to qualified immunity. Unanimously concluding that the plaintiffs fail to allege a violation of the Fourth Amendment, and that the Fifth Amendment right asserted by the plaintiffs was not clearly established at the time of the complained-of incident, we affirm the judgment of dismissal.

The facts and course of proceedings are accurately set forth in the panel majority opinion of Judge Prado, Hernandez v. United States, 757 F.3d 249, 255–57 (5th Cir.2014). We conclude that the panel opinion rightly affirms the dismissal of Hernandez's claims against the United States, id. at 257–59, and against Agent Mesa's supervisors, id. at 280, and we therefore REINSTATE Parts I, II, and VI of that opinion. We additionally hold that pursuant to United States v. Verdugo–Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990), Hernandez, a Mexican citizen who had no “significant voluntary connection” to the United States, id. at 271, and who was on Mexican soil at the time he was shot, cannot assert a claim under the Fourth Amendment.

The remaining issue for the en banc court is properly described as whether “the Fifth Amendment ... protect[s] a non-citizen with no connections to the United States who suffered an injury in Mexico where the United States has no formal control or de facto sovereignty.” Id. at 281–82 (DeMoss, J., concurring in part and dissenting in part). To underscore the seriousness of the tragic incident under review, we elaborate on that description only to note that the injury was the death of a teenaged Mexican national from a gunshot fired by a Border Patrol agent standing on U.S. soil.

To decide the assertion of qualified immunity made by defendant Agent Mesa, regarding the plaintiffs' Fifth Amendment claim, the court avails itself of the latitude afforded by Pearson v. Callahan: “The judges of the ... courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (overruling Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ).

The prongs referred to are familiar: “First, a court must decide whether the facts ... alleged ... make out a violation of a constitutional right.... Second, if [so], the court must decide whether the right at issue was ‘clearly established’ at the time of [the] alleged misconduct.” Id. at 232, 129 S.Ct. 808. “Qualified immunity is applicable unless [both prongs are satisfied].” Id.

The panel opinion correctly describes the substantive-due-process claim as “that Agent Mesa showed callous disregard for Hernandez's Fifth Amendment rights by using excessive, deadly force when Hernandez was unarmed and presented no threat.” Hernandez, 757 F.3d at 267. The question is whether, under the unique facts and circumstances presented here, that right was “clearly established.”

The Supreme Court has carefully admonished that we are “not to define clearly established law at a high level of generality.” Ashcroft v. al-Kidd, ––– U.S. ––––, 131 S.Ct. 2074, 2084, 179 L.Ed.2d 1149 (2011). To the contrary, a right is clearly established only where “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Brosseau v. Haugen, 543 U.S. 194, 199, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam) (quoting Saucier, 533 U.S. at 202, 121 S.Ct. 2151 ) (internal quotation marks omitted). The question here is whether the general prohibition of excessive force applies where the person injured by a U.S. official standing on U.S. soil is an alien who had no significant voluntary connection to, and was not in, the United States when the incident occurred. No case law in 2010, when this episode occurred, reasonably warned Agent Mesa that his conduct violated the Fifth Amendment.

Although the en banc court is somewhat divided on the question of whether Agent Mesa's conduct violated the Fifth Amendment, the court, with the benefit of further consideration and en banc supplemental briefing and oral argument, is unanimous in concluding that any properly asserted right was not clearly established to the extent the law requires. The strongest authority for the plaintiffs may be Boumediene v. Bush, which addressed whether the Suspension Clause of the U.S. Constitution applied to aliens detained outside the United States at the U.S. Naval Base in Guantanamo Bay, Cuba. 553 U.S. 723, 732–33, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008). Although the Court drew on cases from contexts other than habeas corpus, see id. at 755–64, 128 S.Ct. 2229 (discussing the Court's precedents on “the Constitution's extraterritorial application,” including, inter alia, the Insular Cases, In re Ross, 140 U.S. 453, 11 S.Ct. 897, 35 L.Ed. 581 (1891), Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), and Verdugo–Urquidez, 494 U.S. 259, 110 S.Ct. 1056 ), it expressly limited its holding to the facts before it, see id. at 795, 128 S.Ct. 2229 (“Our decision today holds only that petitioners before us are entitled to seek the writ; that the [Detainee Treatment Act] review procedures are an inadequate substitute for habeas corpus; and that petitioners in these cases need not exhaust the review procedures in the Court of Appeals before proceeding with their habeas actions in the District Court.”). Accordingly, nothing in that opinion presages, with the directness that the “clearly established” standard requires, whether the Court would extend the territorial reach of a different constitutional provision—the Fifth Amendment—and would do so where the injury occurs not on land long controlled by the United States, but on soil that is indisputably foreign and beyond the United States' territorial sovereignty. By deciding this case on a ground on which the court is in consensus, we bypass that issue by giving allegiance to “the general rule of constitutional avoidance.” Callahan, 555 U.S. at 241, 129 S.Ct. 808.

“There are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right.”Id. at 237, 129 S.Ct. 808. Reasonable minds can differ on whether Boumediene may someday be explicitly extended as the plaintiffs urge. That is the chore of the first prong of the qualified-immunity test, which we do not address.

The alleged right at issue was not clearly established, under these facts, in 2010.

The judgment of dismissal is AFFIRMED.

EDITH H. JONES, Circuit Judge, joined by SMITH, CLEMENT, and OWEN, Circuit Judges, concurring:

The court has unfortunately taken the path of least resistance. We hold unanimously that Agent Mesa has qualified immunity from this suit for a Fifth Amendment substantive due process violation because he did not violate any clearly established rights flowing from that Amendment. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009). This compromise simply delays the day of reckoning until another appellate panel revisits non-citizen tort claims...

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