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PHOENIX A new ruling Monday from the U.S. Supreme Court could prove good news for the mother of a Mexican teen hoping to sue the Border Patrol agent who shot her son.

In an unsigned order, the justices directed the 5th Circuit Court of Appeals to take another look at its decision in a similar case where a Border Patrol agent in Texas shot and killed a teen who was in a culvert on the Mexican side of the border. The justices said the appellate court needs to consider certain new legal issues.

Potentially more significant, the Supreme Court said there was no basis for lower courts to conclude the Border Patrol agent is entitled to qualified immunity.

The ruling is a victory for the plaintiffs in that case: The appellate court had previously ruled that they had no right to sue in U.S. courts. It gives the parents of Sergio Hernandez a new opportunity to make their case that Border Patrol Jesus Mesa Jr. who fired across the border can be found liable.

But Robert Hilliard, attorney for the victim's family, told Capitol Media Services that what the justices wrote in connection with his case should also benefit Araceli Rodriguez who is suing Border Patrol agent Lonnie Swartz over the 2010 shooting of her son.

"Reviving our case, and determining no qualified immunity (for the Border Patrol agent) is the first step in what I believe will ultimately be constitutional protections to those shot and killed (in Mexico) by Border Patrol agents standing in the United States,'' he said.

Swartz shot Jose Antonio Elena Rodriguez who was standing on the Mexican side of the border at Nogales, through the border fence. Swartz has not denied the incident but said the 16-year-old was throwing rocks at him.

After hearing oral arguments last year, the judges of the 9th Circuit decided not to rule whether her case could go forward. Instead they said they would wait to see what the Supreme Court ruled in the Texas case.

There are several issues that are key in both cases.

Potentially the most crucial is whether a Fourth Amendment claim of wrongful search and seizure in this case, encompassing wrongful death can be brought in federal courts when the victim was killed in a foreign country.

The full 5th Circuit said no because the victim was "a Mexican citizen who had no significant voluntary connection to the United States'' and "was on Mexican soil at the time he was shot.''

But Hilliard noted the Supreme Court said it's not that simple. He said the justices want the issue reconsidered, with the lower court considering things ranging from the rank of the officers involved to how disruptive it would be to have judges intruding into the function of other branches of government.

And Hilliard insisted those factors favor not only his client but also Rodriguez in her case against Swartz.

In Monday's ruling, the justices also resurrected the claim that Hernandez's Fifth Amendment rights were violated because he was deprived of life or liberty without "due process of law.''

That claim does not require someone be in the United States to bring. But the appellate court concluded that the Border Patrol agent was entitled to qualified immunity because Hernandez was "an alien who had no significant voluntary connection'' to the United States.

The justices, however, said that assumption has no legal basis.

"It is undisputed, however, that Herandez's nationality and the extent of his ties to the United States were unknown to Mesa at the time of the shooting,'' the high court wrote.

Swartz, through attorney Sean Chapman, has raised the same defense of qualified immunity. But U.S. District Court Judge Raner Collins, in an earlier ruling, reached the same conclusion as the Supreme Court in the Hernandez case, saying Collins cannot claim qualified immunity for his actions, particularly as the agent could not have known at the time of the shooting that the victim was not a citizen.

If nothing else, Monday's court action means it will likely be at least October if not later before the justices rule in the Texas case. And that keeps the civil lawsuit against Swartz on the back burner, even as a criminal trial against him is set to begin Oct. 12.

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High court rules against immunity for agent in Texas cross-border shooting - White Mountain Independent

From Texas Standard:

Plaintiffs have fileda new lawsuitchallenging the University of Texas at Austin's race-based admission rules. Unlike a well-known case that went all the way to the U.S. Supreme Court, the new suit was filed in state court, and bases its claims on the Texas Constitution and state statutes. Because the Supreme Court ruled in Fisher v. University of Texas that UT-Austin could retain its race-based admission system, it is unclear how the new case will fair.

In 2008, Abigail Fisher, a Caucasian woman from Sugarland, applied for admission to UT-Austin. She didn't qualify for automatic admission because she wasn't in the top 10 percent of her class. She competed with others in the the normal pool of in-state applicants and didn't get in. Fisher claimed that if the university had not used race as a factor in admissions, she would have been admitted.

The Supreme Court found that UT-Austin's practice of using race as one factor in admission decisions was narrowly tailored to promote diversity and therefore acceptable under the U.S. Constitution.

A group that backed Fisher in her case, the non-profit Students for Fair Admissions,filed a new complaintin a Travis County court on behalf of a new set of plaintiffs. They are arguing that affirmative action, as used by UT-Austin, is invalid under the Texas constitution.

Lynne Rambo, a professor of law at Texas A&M University Law school, who is a specialist in equal protection, affirmative action and constitutional law, says the plaintiffs base their suit on three state provisions, including two found in the Texas Constitution.

"The main part of the Texas Constitution that they're relying on is the Equal Rights Amendment that Texas adopted back in 1972, when [it] was being advanced by women [nationally.] That has been interpreted by the Texas Supreme Court to go beyond the Equal Protection Clause," Rambo says.

Cases based on Texas law could fail because the U.S. Constitution's Supremacy Clause places adherence to the U.S. Constitution over state law. But Rambo says the fact that the Texas Equal Rights Amendment grants more rights could help the plaintiffs' case.

"Classically, the states have been allowed to expand broader constitutional rights than the U.S. Constitution," she says. "In many states, there are broader Fourth Amendment protections. Texas, for example, has a broader Fifth Amendment self-incrimination privilege than the U.S. Constitution affords."

Students for Fair Admissionwas created by Edward Blumto seek plaintiffs to challenge university admissions policies at UT-Austin, Harvard, the University of North Carolina and the University of Wisconsin.

"He's a UT grad, and he apparently has a real dislike for the consideration of race in any number of areas," Rambo says. "He was behind Shelby County, for example, the case challenging Sections 4and 5 of the Voting Rights Act."

Written by Shelly Brisbin.

Continue reading here:
UT-Austin Faces Another Affirmative Action Lawsuit - KUT

Do We Really Want People to Learn How to Spot Micro Facial Expressions?

Paul Ekman Group

By definition, micros leak emotions that people dont want others to know they are feeling. Sometimes, even the person showing the micro is not aware of the emotion that is leaking out. My Micro Expression Training Tool (METT) enables those who study it to take this information from people attempting to conceal their emotions (and, in a sense, they are stealing this information).

Who has the right to do that, to tear away the curtains disguise? Certainly the Law Enforcement Officers (LEOs), although I have argued (a bit rhetorically) that LEOs who have been trained to spot micros should offer those they talk to the opportunity to wear a mask or facial cover.

The Fifth Amendment to the Constitution protects us from self-incrimination, but micros may provide the Law Enforcement Officer (LEO) who took our training just such incriminating information- just what the person involuntarily showing the micros doesnt want a LEO to know. Would it be in the spirit of the Fifth Amendment for LEOs who have learned how to spot micros to at least inform those they interview that they have been specially trained to take this information- to invade privacy without consent? Should they offer criminal suspects the right to wear a mask to preserve their Fifth Amendment protection?

Many people (lawyers, business operators, salespersons) whose interests are not always the same as those whose micros they learn to spot, can now (without forewarning) invade privacy, taking information without permission that the provider would not want them to have. I never thought about these issues when I developed METT, but I recognize that my training courses enable an invasion of a very private realm of peoples lives: the feelings they dont want everyone (and sometimes, no one) to know they are experiencing.

And yet, such an invasion of privacy can serve the public good. It helps the health care provider doctor, nurse, or other caregiver tune in and, therefore, be better able to help.

I once thought that I might be able to control who else would be able to use METT, but I learned from my colleagues in the Department of Defense that there is no way to do that. A tool, once created and accessible on the internet, is available to everyone who pays the nominal price. All I can hope, my Defense Department colleagues advised, is that it will be used more for what I consider to be good, to help people, than to harm or exploit people.

The proverbial cat is out of the bag, free to go anywhere!

Dr. Paul Ekman is a well-known psychologist and co-discoverer of micro expressions. He was named one of the 100 most influential people in the world by TIME magazine in 2009. He has worked with many government agencies, domestic and abroad. Dr. Ekman has compiled over 40 years of his research to create comprehensive training tools to read the hidden emotions of those around you. To learn more, please visit: http://www.paulekman.com.

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The dangers of reading micro expressions - HuffPost

(CN) A divided Supreme Court on Monday said the Fifth Circuit must ultimately decide whether the family of a Mexican teen shot dead by a U.S. border agent can sue the agent for damages.

The courts per curiam opinion vacates a previous ruling by an en banc Fifth Circuit and sends the case back to it for further proceedings.

The case stems from a shooting that occurred on June 7, 2010. Sergio Adrian Hernandez Guereca, a 15-year-old Mexican national, was with a group of friends in the cement culvert that separateEl Paso, Texas, from Ciudad Juarez, Mexico.

As recounted in the majority opinion, Hernandez and his friends were playing a game in which they ran up the embankment on the United States side, touched the fence, and then ran back down.

Border Patrol Agent Jesus Mesa, Jr., arrived on the scene by bicycle and detained one of Hernandezs friends on the U.S. side of the embankment.Hernandez ran across the culvert and stood by a pillar on the Mexican side. Mesa fired two shots across the border, one of which struck Hernandez in the face, killing him.

The Justice Department investigated the incident and declined to bring federal civil rights charges against Mesa, finding there was insufficient evidence that Mesa acted willfully and with the deliberate and specific intent to do something the law forbids.

It also held that because Hernandez was not on U.S. soil when he was shot, the department had no jurisdiction to bring charges against the agent.

Hernandezs parents sued Mesa for damages, claiming that he violated their sons rights under the Fourth and Fifth Amendments. They also said at the time of his death, their son was unarmed and in no way posed a threat to the officer.

A federal judge in the Western District of Texas granted Mesas motion to dismiss. A three-judge panel of the Fifth Circuit later affirmed that ruling in part and reversed it in part.

It held Hernandez lacked any Fourth Amendment rights under the circumstances, but that the shooting violated his Fifth Amendment rights. On rehearing en banc, the Fifth Circuit unanimously affirmed the district courts dismissal of the familys claims against the officer.

The en banc court held that the family failed to state a claim for a violation of the Fourth Amendment because Hernanadez was a Mexican citizen who had no significant voluntary connection to the United States and was on Mexican soil at the time he was shot.

In regard to the familys Fifth Amendment claim, theen banc court said it wassomewhat divided on the question of whether Agent Mesas conduct violated the Fifth Amendment, but was unanimous in concluding that Mesa was entitled to qualified immunity.

In their petition for a writ of certiorari, the family asked the Supreme Court to determine whether they could assert claims for damages underBivens v. Six Unknown Fed. Narcotics Agents, in which the high court recognized for the first time an implied right of action for damages against federal officers alleged to have violated a citizens constitutional rights.

They also asked the justices to determine whether the shooting violated their sons Fourth Amendment rights, and whether Mesa was entitled to qualified immunity on the claim that the shooting violated Hernandezs Fifth Amendment rights.

In sending the case back to the Fifth Circuit, the majority noted that a Bivens remedy is not available when there are special factors counselling hesitation in the absence of affirmative action by Congress, and that it recently clarified what constitutes a special factor counselling hesitation in the case Ziglar v. Abbasi.

The Court of Appeals here, of course, has not had the opportunity to consider how the reasoning and analysis in Abbasi may bear on this case. And the parties have not had the opportunity to brief and argue its significance. In these circumstances, it is appropriate for the Court of Appeals, rather than this Court, to address the Bivensquestion in the first instance, the opinion says.

With respect to petitioners Fourth Amendment claim, the en banc Court of Appeals found it unnecessary to address the Bivens question because it concluded that Hernandez lacked any Fourth Amendment rights under the circumstances, the opinion continues. This approach disposing of a Bivensclaim by resolving the constitutional question, while assuming the existence of a Bivens remedy is appropriate in many cases. This Court has taken that approach on occasion. The Fourth Amendment question in this case, however, is sensitive and may have consequences that are far-reaching.

It would be imprudent for this Court to resolve that issue when, in light of the intervening guidance provided in Abbasi, doing so may be unnecessary to resolve this particular case, the majority of justices say.

With respect to petitioners Fifth Amendment claim, the en banc Court of Appeals found it unnecessary to address the Bivens question because it held that Mesa was entitled to qualified immunity. In reaching that conclusion, the en banc Court of Appeals relied on the fact that Hernandez was an alien who had no significant voluntary connection to the United States.

It is undisputed, however, that Hernndezs nationality and the extent of his ties to the United States were unknown to Mesa at the time of the shooting. The en banc Court of Appeals therefore erred in granting qualified immunity based on those facts, the opinion says.

In a dissent, Justice Clarence Thomas said the facts of the case differ considerably from those at issue in Bivens and its progeny, most notably this case involves cross-border conduct , and those case did not. Thomas says he would decline to extend Bivens under the circumstances and would affirm the en banc Fifth Circuit decision on that basis.

In a separate dissent, which Justice Ruth Bader Ginsburg joined Justice Stephen Breyer says that when Mesa shot Hernandez from across the culvert, he did not know whether Hernandez was a U.S. citizen or a Mexican citizen. Further, he says, the agent has never asserted he knew on which side of the boundary his bullet would fall.

Breyer goes on to say that while the culvert is thought of as being the boundary line between the two countries, technically, because there are fences on either side of it, it may actually be thought of as no more than a border-related area and that the boundary is in essence an invisible line of which none of them is aware.

In light of these considerations and others, Breyer says there is more than enough reason for treating the entire culvert as having sufficient involvement with, and connection to, the United States to subject the culvert to Fourth Amendment protections.

I would consequently conclude that the Fourth Amendment applies, Breyer says.

Finally, I note that neither court below reached the question whether Bivens applies to this case, likely because Mesa did not move to dismiss on that basis. I would decide the Fourth Amendment question before us and remand the case for consideration of the Bivens and qualified immunity questions, he adds.

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Originally posted here:
Justices Say Fifth Circuit Must Decide Cross-Border Shooting Case - Courthouse News Service

ANALYSIS/OPINION:

Liberty is slowly dying in this nation. The battles where liberty dies are mostly not the headline grabbing stories, but instead small cuts that help reduce this nation to despotism.

One of the cornerstones of liberty in America is property rights. In other nations, past and present, the sovereign could take a citizens property and the citizen was simply out of luck. Our founding fathers so feared the power of the government to take private property that they included what is known as the takings clause in the Fifth Amendment.

The Fifth Amendment is one of the most expansive amendments to the United States Constitution and it includes the takings clause; which states, nor shall private property be taken for public use, without just compensation.

Recently, the committee of nine unelected lawyers known as the Supreme Court gutted the Fifth Amendment. The case was called Murr v. Wisconsin.

In the Murr case, a family in Wisconsin owned two lots. On one, they built a nice cabin and the other they left undeveloped. The family at some point planned to sell the second lot at a profit. While the Murr family waited and their lot appreciated to $400,000 estimated value, the State of Wisconsin changed the rules.

The Murr family wanted to sell the one lot and keep their cabin. But under the new rules, the only allowable buyer for the lot was the State of Wisconsin. And the State of Wisconsin told them even more good news. If they wanted to sell, they would have to sell both of their lots, and the State of Wisconsin, the only permitted buyer, would only pay them $40,000.

The Murr family was outraged and sued under the takings clause. The Murrs (correctly) contended that by changing the rules after the family had bought the land and reducing the value, the government had taken their property.

In an utterly horrible decision, the United States Supreme Court ruled 5-3 that what Wisconsin did was not a taking under the U.S. Constitution.

In 2005, the Supreme Court decided the case of Kelso v. City of New London. In that case, the City of New London sought to use eminent domain to take private property for not a government purpose but for to be sold to another private company.

The idea that a private company could use the government to force an unwilling seller to give up their property is repugnant to liberty. Now, thanks to the Supreme Court, states are now free to change the rules and deprive someone of the value of property.

The Supreme Court is accelerating the movement of Americans from being property owners to being serfs. Under serfdom, serfs were bound to the land and were responsible for the land, even though they never received any benefit from the land.

Surveys show that fewer millennials are interested in property ownership. Why should they be? With the latest ruling from the Supreme Court, property owners in this nation are only one step above being serfs. Why would anyone want to spend their wealth on property the government can take at whim.

America is on the road to serfdom and that road is paved with bad Supreme Court decisions.

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Supreme Court, Wisconsin hit property rights - Washington Times