(NationalSentinel) Throughout U.S. history no foreign national was afforded carte blanche constitutional rights in the U.S., but the Supreme Court could change that, and soon.

As reported by Lifezette, the nation’s highest court will soon be deciding whether a U.S. law enforcement officer can be sued in an American court for the death of a foreigner outside the United States.

Up to now, U.S. courts have ruled that foreign nationals without voluntary ties to the U.S. do not have constitutional rights. But that may change, and if so, there are huge implications, as you can imagine.

The case is Hernández v. Mesa, and it’s noteworthy that the high court even agreed to take it, meaning the long-held understanding of U.S. law is being questioned.

“That has been under a lot of pressure and challenge recently,” Fordham University School of Law professor Andrew Kent told reporters on a conference call last week.

From Lifezette:

The Supreme Court opened the door to a possible revision with a 2008 ruling that held that prisoners at the Guantanamo Bay, Cuba, detention facility had a right to petition the U.S. courts even though Gitmo is on foreign soil and the detainees were foreigners who never even had been to the United States.

Attorneys for the family of Sergio Hernández quote liberally from that case, Boumediene v. Bush, in their written legal arguments.

U.S. Border Patrol agents worry a decision in favor of the plaintiffs would make it harder for them to do their jobs, and legal scholars speculate that it could — depending on how expansive the language in the opinion is — impact immigration more generally.

Here are the details surrounding the case. In 2010, 15-year-old “Hernandez,” a Mexican citizen, was allegedly playing a game with friends that involved running up to a fence in front of a ditch containing a fence separating the U.S. and Mexico.

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At some point, Mesa, a Border Patrol agent, detained one of the youths. He alleged that Hernandez ran back across the border and began chucking rocks at him. He also said that Hernandez was a known human smuggler who had been arrested twice but released back into Mexico because of his age.

What is not being disputed, however, is that Mesa shot and killed Hernandez while he was on Mexican soil.

A 5th Circuit district court threw out the plaintiff’s lawsuit and that was upheld by an appeals panel of the 5th Circuit in New Orleans. Now the case is heading to SCOTUS.


Attorneys for the Hernández family argue that the case is similar to the situation in Boumediene. Like Gitmo, they argue, border officers exercise a level of control along the border that makes it effectively U.S. territory.

“If this Court were to side with the government, it would effectively turn the border into an on-off switch for fundamental constitutional protection,” they write in a court filing.

But Mesa’s attorneys argue that the border is not at all like the U.S. military base in Cuba. The dividing line between Mexico and the United States is fixed, they write.

“To hold otherwise would create extraterritorial jurisdictional jurisprudence based on subjective determinations on where to draw the line,” the brief states.

As you can imagine, Border Patrol agents are watching this case carefully.

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