Constitution Applies on Foreign Soil Says Federal Appeals Court
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UPDATE – January 21, 2015
A full panel of the Fifth Circuit reheard Hernandez v. U.S. today. You can listen to the hour-long oral argument here.
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June 30, 2014
In a momentous decision, the Fifth Circuit Court of Appeals ruled today that the Constitution applies outside of the territorial limits of the United States, in this case Mexico, squarely rejecting the government’s argument that constitutional rights end at the border. The court accordingly reinstated a lawsuit brought by the family of a 15-year-old Mexican boy who was fatally shot by a border patrol agent standing on U.S. soil shooting across the border.
The ACLU and its border affiliates filed an amicus brief arguing, that after the Supreme Court’s Guantanamo decision in Boumediene, there is no basis for the government’s position that the Constitution does not apply abroad.
The following can be attributed to Lee Gelernt, Deputy Director of the National ACLU’s Immigrants’ Rights Project: “Any other result by the court of appeals in this case would have meant that border patrol agents could continue to shoot Mexican nationals such as this 15 year-old-child with impunity, free from judicial oversight. The court properly rejected the notion that the federal government can monitor itself, especially in such an egregious case.”
As the court described the facts in the case, on June 7, 2010, a group of Mexican teenagers were playing on the Mexican side of the border when a border agent detained one of the boys. Hernandez, the victim in this case, retreated but was nonetheless fatally shot by the agent. The district court threw out the lawsuit but the federal court of appeals reinstated the suit, concluding that a Mexican national has Fifth Amendment constitutional due process rights to be free from actions that “shock the conscience” and other official abuses of power.
Contributing to the ACLU’s amicus brief in the case were Lee Gelernt, Esha Bhandari, Cecillia D. Wang and Steven Watt of the American Civil Liberties Union Foundation; James Duff Lyle and Daniel Pochoda of the ACLU of Arizona; Krystal Gomez and Rebecca Robertson of the ACLU of Texas; Sean Riordan of the ACLU of San Diego & Imperial Counties; and Alexandra Smith of the ACLU Foundation of New Mexico.
The court’s ruling is available at:
The amicus brief filed by the ACLU is available at: