785 F.3d 117 (5th Cir. 2015), 11-50792, Hernandez v. United States

Docket Nº:11-50792, 12-50217, 12-50301
Citation:785 F.3d 117
Opinion Judge:PER CURIAM
Party Name: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 He
Attorney:For 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 GUERE BENTACOUR, Individually and as the surviving mother of Sergio Adrian Hernandez Guereca, and as ...
Judge Panel:Before STEWART, Chief Judge, and JOLLY, DAVIS, JONES, SMITH, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, and COSTA, Circuit Judges.[*] EDITH H. JONES, Circuit Judge, joined by SMITH, CLEMENT, and OWEN, Circuit Judges, concurring. JAMES L. DENNIS, Circuit Judge, conc...
Case Date:April 24, 2015
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 117

785 F.3d 117 (5th Cir. 2015)

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 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 - Appggaellants

v.

RAMIRO CORDERO; VICTOR M. MANJARREZ, JR., Defendants - Appellees

Nos. 11-50792, 12-50217, 12-50301

United States Court of Appeals, Fifth Circuit

April 24, 2015

Page 118

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

For 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 GUERE 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 (11-50792): Robert C. Hilliard, Esq., Rudy O. Gonzales Jr., Marion M. Reilly, Hilliard Munoz Gonzales, L.L.P., Corpus Christi, TX; Cristobal Miguel Galindo, Attorney, Houston, TX; Steve D. Shadowen, Esq., Hilliard & Shadowen, L.L.C., Mechanicsburg, PA.

For 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, United States Department of Justice, Defendants - Appellees (11-50792): Henry Charles Whitaker, 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, Western District of Texas, San Antonio, TX; Zachary Carl Richter, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, Austin, TX.

For 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 GUERE BENTACOUR, Individually and as the surviving mother of Sergio Adrian Hernandez Guereca, and as Successor-in-Interest to the Estate of Sergio Adrian Hernandez, Plaintiff - Appellants (12-50217): Robert C. Hilliard, Esq., Rudy O. Gonzales Jr., Marion M. Reilly, Hilliard Munoz Gonzales, L.L.P., Corpus Christi, TX; Steve D. Shadowen, Esq., Hilliard & Shadowen, L.L.C., Mechanicsburg, PA.

For Jesus Mesa, Jr. Defendant - Appellee (12-50217): Randolph Joseph Ortega, Esq., Ellis & Ortega, El Paso, TX; Louis Elias Lopez Jr., Esq., Law Office of Louis E. Lopez, El Paso, TX.

For American Civil Liberties Union Foundation, American Civil Liberties Union Foundation of Arizona, American Civil Liberties Union Foundation of New Mexico, American Civil Liberties Union Foundation of Texas, American Civil Liberties Union Foundation of San Diego & Imperial Counties, Amicus Curiae (12-50217): Esha Bhandari, Center for Reproductive Rights Immigrants' Rights Project, New York, NY; Lee P. Gelernt, Esq., American Civil Liberties Union Foundation, New York, NY; Alexandra Freedman Smith, American Civil Liberties Union of New Mexico, Albuquerque, NM; Cecillia D. Wang, American Civil Liberties Union Foundation, San Francisco, CA.

For Border Network For Human Rights, Paso Del Norte Civil Rights Project, Southern Border Communities Coalition, Amicus Curiae (12-50217): Nancy Winkelman, Attorney, Schnader, Harrison, Segal & Lewis, L.L.P., Philadelphia, PA.

For Government of The United Mexican States, Amicus Curiae (12-50217): Donald Francis Donovan, Esq., Senior Counsel, Carl Jonas Micarelli, Debevoise & Plimpton, L.L.P., New York, NY.

For Guinevere Elizabeth Moore, Robert T. Moore, Amicus Curiae (12-50217): Guinevere Elizabeth Moore, Olmos Park, TX.

For 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 GUERE BENTACOUR, Individually and as the surviving mother of Sergio Adrian Hernandez Guereca, and as Successor-in-Interest to the Estate of Sergio Adrian Hernandez, Plaintiff - Appellants (12-50301): Robert C. Hilliard, Esq., Rudy O. Gonzales Jr., Marion M. Reilly, Hilliard Munoz Gonzales, L.L.P., Corpus Christi, TX; Steve D. Shadowen, Esq., Hilliard & Shadowen, L.L.C., Mechanicsburg, PA.

For Ramiro Cordero, Victor M. Manjarrez, Jr., Defendant - Appellees (12-50301): Zachary Carl Richter, Assistant U.S. Attorney, U.S. Attorney's Office, Austin, TX; Henry Charles Whitaker, Helen Louise Gilbert, 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.

Before STEWART, Chief Judge, and JOLLY, DAVIS, JONES, SMITH, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, and COSTA, Circuit Judges.[*] EDITH H. JONES, Circuit Judge, joined by SMITH, CLEMENT, and OWEN, Circuit Judges, concurring. JAMES L. DENNIS, Circuit Judge, concurring in part and concurring in the judgment. EDWARD C. PRADO, Circuit Judge, concurring. CATHARINA HAYNES, Circuit Judge, joined by SOUTHWICK and HIGGINSON, Circuit Judges, concurring. JAMES E. GRAVES, JR., Circuit Judge, concurring in part.

OPINION

Page 119

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

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" 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. " 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...

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