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Posted Mon, June 26th, 2017 4:23 pm by Amy Howe

It has been a little over seven years since 15-year-old Sergio Hernandez was shot by Jesus Mesa, a U.S. Border Patrol agent, while Hernandez was standing on the Mexican side of the border. Hernandezs family filed a lawsuit against Mesa, arguing that (among other things) the shooting violated Hernandezs right under the Fourth Amendment to be protected against excessive deadly force. Both Mesa and the U.S. government urged the Supreme Court to uphold the lower courts rulings dismissing the familys lawsuit, but their case survived at least for now. Acknowledging that the facts outlined in the familys lawsuit depict a disturbing incident resulting in a heartbreaking loss of life, the justices sent the case back to the lower court for it to take another look.

View of the courtroom on the last day of opinions (Art Lien)

The Hernandez family had asked the justices to weigh in on two questions: whether the Fourth Amendments bar on excessive deadly force applies outside the United States and how courts should make that determination; and whether, even if Hernandez was protected by the Fifth Amendments guarantee that his life would not be taken without proper judicial proceedings, Mesa is immune from suit. But the justices asked the two sides to brief another question: whether the Hernandez family can rely on the Supreme Courts 1971 decision in Bivens v. Six Unknown Named Agents, holding that a plaintiff can bring a private federal case for damages against federal officials who allegedly violated his constitutional rights, at all.

In an unsigned opinion, the Supreme Court emphasized today that the lower court had not given any consideration to the Bivens question. The justices noted that plaintiffs cannot rely on Bivens when there are special factors counselling hesitation in the absence of affirmative action by Congress. And in another decision last week, the court continued, it indicated that the focus of that inquiry should be whether courts are well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed. Therefore, the court concluded, the case should go back to the lower court for it to consider what effect that ruling might have on the Bivens question in this case. Doing so, the court indicated, might eliminate any need for the court of appeals to decide whether Hernandez was protected by the Fourth Amendment which, the court seemed to suggest, could be preferable to deciding the sensitive and potentially far reaching Fourth Amendment question.

The court disagreed with the lower courts conclusion that Mesa was entitled to qualified immunity from the familys Fifth Amendment claim. That conclusion, the court explained, rested on the fact that Hernandez was not a U.S. citizen and did not have any connection to the United States. But that fact isnt relevant to whether Mesa can be immune from a lawsuit, the court countered, because Mesa only learned after the shooting that Hernandez was not a U.S. citizen. Here too, the court stressed, the lower court had not addressed whether the familys claim could even proceed under Bivens; it will now consider that question, as well as a series of other arguments about qualified immunity, on remand.

Justice Clarence Thomas wrote separately to indicate that, in his view, the Hernandez family could not rely on Bivens at all. This case, he contended, arises in circumstances that are meaningfully different from those at issue in Bivens and its progeny in particular, conduct that occurs across an international border. He would not have sent the case back to the lower court; instead, he would have put a halt to it altogether.

Justice Stephen Breyer dissented, joined by Justice Ruth Bader Ginsburg. In his view, Hernandez was protected by the Fourth Amendment when he was shot. Even if he was on the Mexican side of the border, Breyer reasoned, his location should not, standing alone, be dispositive. This is particularly true, Breyer continued, when you consider several factors. For example, Mesa who shot Hernandez is a federal law-enforcement officer, and the culvert where Hernandez was shot is in fact a special border-related area run by an international commission to which the United States contributes tens of millions of dollars each year. Moreover, a finding that Hernandez was not protected by the Fourth Amendment would create an anomalous result: Mesa could be held liable for shooting Hernandez if Hernandez was on the U.S. side of the imaginary mathematical borderline running through the culverts middle, but not if Hernandez was just a few feet on the other side of that line, even if everything else about the case, including Mesas behavior, remained the same. When all of these things are considered together, Breyer concluded, 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. He would therefore decide the Fourth Amendment question in favor of Hernandez and send the case back to the lower court for it to decide the Bivens and qualified immunity questions.

Posted in Hernndez v. Mesa, Analysis, Featured, Merits Cases

Recommended Citation: Amy Howe, Opinion analysis: Court sends cross-border shooting lawsuit back to lower court, SCOTUSblog (Jun. 26, 2017, 4:23 PM), http://www.scotusblog.com/2017/06/opinion-analysis-court-sends-cross-border-shooting-lawsuit-back-lower-court/

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Opinion analysis: Court sends cross-border shooting lawsuit back to lower court - SCOTUSblog (blog)

Sacramento Bee

Why California gun owners may be breaking the law on July 1 Sacramento Bee You can't just take something away from somebody that they own without violating the Fourth Amendment. Some gun owners say they're hanging on to their magazines in the hopes pending court challenges will block the ban. They also hope the federal ...

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Why California gun owners may be breaking the law on July 1 - Sacramento Bee

The Trump administration asked a federal judge on Friday to uphold the constitutionality of the controversial state immigration crackdown passed by the Republican-dominated Texas legislature.

The U.S. government isnt a party in the lawsuit challenging Texas Senate Bill 4, which bans so-called sanctuary policies that limit local police from cooperating with federal immigration authorities. But the Texas law has become a prominent test of whether courts will approve strong-arm tactics endorsed by President Donald Trumpto pressure local jurisdictions into complying with federal deportation efforts.

President Trump has made a commitment to keep America safe and to ensure cooperation with federal immigration laws, Attorney General Jeff Sessions said in a statement Friday. The Department of Justice fully supports Texass effort and is participating in this lawsuit because of the strong federal interest in facilitating the state and local cooperation that is critical in enforcing our nations immigration laws.

SB 4 bars local jurisdictions in Texas from denying requests from Immigration and Customs Enforcement to hold suspected undocumented immigrants on the federal governments behalf. Adopting a policy of refusing such requests, known as detainers, can land public officials in jail for up to a year under the new law. SB 4 also allows local police officers to ask the immigration status of anyone they stop, drawing comparisons to an Arizona law derided by critics as the show me your papers law.

Several jurisdictions including Austin, San Antonio and El Paso filed lawsuits to overturn SB 4 shortly after Gov. Greg Abbott signed it into law last month.

The legal challenges accuse Republican lawmakers of trampling multiple constitutional principles.

Several federal judges have ruled in recent years that holding someone on an ICE detainer in a local jail if they would otherwise be allowed to go free violates the Fourth Amendments guarantees against illegal search and seizure. And because the federal government alone is charged with crafting immigration policy, the state of Texas cant create its own, or dole out criminal penalties for refusing to follow a state policy, critics argue.

The flurry of lawsuits were consolidated into a single case that will have its first hearing on Monday, when U.S. District Judge Orlando Garcia will consider whether to block the law from taking effect on Sept. 1 while the legal challenges move forward.

The Justice Department will try to convince the judge to give the law a chance.

Cooperation with federal officials is plainly permitted under the [Immigration and Nationality Act] and the Constitution, the statement of interest filed by DOJ reads. Parties may disagree with the state legislatures policy determinations in enacting SB 4, but nothing in federal immigration law precludes a state from directing law enforcement officers in the state to cooperate with the federal government, rather than merely permitting them to do so on an ad hoc basis.

The filing hinges on the argument that ICE detainers have changed in the months since Trump took office. The Department of Homeland Security started issuing administrative arrest warrants in April, along with detainer requests, in an apparent effort to make ICE holds less vulnerable to legal challenges.

That argument may not convince Garcia. He ruled earlier this month that the Bexar County Sheriffs Office in Texas violated the Fourth Amendment by refusing to release an undocumented immigrant for more than two months on the basis of an ICE detainer. The ruling appeared to strike a major blow against SB 4, which aims to force local jurisdictions to honor all such requests from ICE.

The Justice Departments filing took note of that ruling, but countered that the case began last year, before Trump took office. The Trump administrations new policy of including administrative warrants with ICE detainers solves the problem and is fully consistent with the Fourth Amendment, the filing says.

But avoiding the constitutional pitfalls presented by ICE detainers requires a warrant in a criminal case, not an administrative warrant for a violation of civil immigration law, according to Nina Perales, an attorney with the Mexican American Legal Defense and Educational Fund.

The Fourth Amendment in this context requires probable cause that the individual has committed a crime in order to deprive that person of liberty, Perales, one of several lawyers representing SB 4s opponents, told HuffPost. DOJ cannot hang its hat on the new detainer form when it comes to the stringent requirements of the Fourth Amendment.

Read the Justice Departments statement of interest below.

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Trump Administration Backs Texas In Immigration Crackdown Challenge - HuffPost

Next time you set out to commit armed robbery, leave your cellphone at home. Timothy Carpenter was convicted of robbing a string of T-Mobile and Radio Shack stores, stealing smartphones. But he wasnt too smart himself. He used his cellphone to call 15 getaway drivers. The calls were his undoing. The FBI used the records from his wireless carrier to confirm his proximity to every robbed store when it was hit.

Now Carpenter and the American Civil Liberties Union are challenging the conviction, and the Supreme Court just agreed to hear the case. Activists determined to guarantee total privacy to criminal suspects, no matter what the cost to society, are thrilled. Theyre predicting Carpenter v. United States could be a landmark victory for privacy. How foolish. A victory for Carpenter would tip the scales of justice in favor of criminals and against law enforcements ability to keep us safe.

The ACLU claims using wireless companies records to pinpoint suspects locations violates the Fourth Amendments privacy protections. Dont fall for it.

The Supreme Court already has already ruled the actual content of cellphones cannot be searched without a court-issued warrant, because the Fourth Amendment bars unreasonable searches by government. But in Carpenter, the ACLU is stretching the notion of privacy, trying to block police from identifying a cellphones location. Not its content, just its location.

Carpenter v. United States is part of the ACLUs campaign to hobble police and shield wrongdoers both terrorists and common criminals from the latest technologies available to law enforcement.

In the Carpenter case, the ACLU insists the FBI overreached by looking at many months of Carpenters phone records, revealing where he prayed, slept and shopped. But how else could agents find out whether he was near the robbed stores? Carpenters spree went on for months.

Lawyers defending the FBI say phone records are vital for promptly apprehending criminals and exonerating innocent suspects as early as possible.

They also argue Carpenter had no reason to expect his phone records would be private. Anyone who signs up for a cellphone knows the phone company a third party will have call records. Theyre not private.

Not so fast, said Justice Sonia Sotomayor in a previous case. Sotomayor suggested that it may be necessary to reconsider the premise that there is no privacy right once someone gives information to a third party like the phone company. If other justices agree with Sotomayor, the Court could ultimately bar the use of cellphone records without a warrant.

Privacy purists across the political spectrum including the libertarian Cato Institute are lining up against law enforcement. They argue that the Fourth Amendment guarantees Americans must be secure in their persons, houses, papers and effects from unreasonable searches. Thats a precious right.

But as the store owners robbed by Carpenter will tell you, theres also a need to be secure from criminals.

Not to mention terrorists.

The Carpenter case involves records of calls made in the past. What about a new technology police departments are using to track cellphone locations in real time? It can track fugitives, find abducted children, even foil terrorist attacks.

Its a suitcase-size device called a Stingray, and it mimics cell towers. When its moved to an area, cellphones send signals to it, mistaking it for a tower. Stingrays fool cellphones into becoming tracking devices. It was developed by the military, and some object to its use to catch common criminals.

The ACLU is urging dozens of cities, including New York, to clamp down on use of Stingrays and is going to court in some cities to stop it. Thats very misguided, says New York City Deputy Police Commissioner Larry Byrne.

Whos helped when wrongdoers have better technology than cops? Thats one of the questions the Justices will weigh in Carpenter and in future cases as new technologies test the meaning of the Fourth Amendment.

Betsy McCaughey is a senior fellow at the London Center for Policy Research and a former lieutenant governor of New York State. Contact her at betsy@betsymccaughey.com.

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BETSY MCCAUGHEY: Privacy purists help criminals - Examiner Enterprise

For weeks, President Trump cried foul, repeating unverified claims that the Obama administration wiretapped Trump Tower to spy on him, accusations that remain unsubstantiated.

But Mr. Trump, with the power of the presidency and executive branch as a whole at his fingertips, has said little of how he intends to approach the authority he now wields over the country's surveillance policies. As developing policing technologies continue to outpace laws restricting their use, and as Mr. Trump and top members of his administration like Attorney General Jeff Sessions take a hard line against illegal immigration, terrorism and crime, experts in constitutional law and civil liberties fear the lack of an accompanying conversation on privacy protections could contribute to the erosion of Fourth Amendment rights.

"I think we will see a push from the Trump administration to expand surveillance powers, and that of course could directly implicate Fourth Amendment protections," said Christopher Slobogin, a professor at Vanderbilt University Law School who has studied and written on Fourth Amendment, privacy and surveillance issues for years.

"And they're going to push I think also for greater militarization of the police, which could affect Fourth Amendment issues," Slobogin added.

The American Civil Liberties Union is currently taking the Department of Justice to court to determine when the government notifies people they are under surveillance.

In May 2015, before announcing his bid for the presidency, Mr. Trump said he supported legislation allowing the National Security Agency (NSA) to hold bulk metadata, and later in the year reiterated he would tend to "err on the side of security." On the campaign trail, and after taking office, Mr. Trump has emphasized the importance of bulking up police forces and eradicating terrorism. Sessions fought against reforms of the Foreign Intelligence Surveillance Act (FISA) in 2012, and against limits on the NSA's spying powers.

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FBI Director James Comey says there is no evidence to support President Donald Trump's tweet about a "wiretap" of Trump Tower during the 2016 ele...

"It's not as though this didn't exist before Trump, because it's all in this terrorism -- war on terrorism stuff," said Robert Bloom, a professor at Boston College Law School who focuses on criminal procedure and civil rights law. "We've loosened up on protections of individuals. But now you've really got an abusive executive. A president and attorney general who don't really give two whits about individual protection and about the Fourth Amendment."

The White House and Department of Justice did not respond to requests for comment for this story.

The Fourth Amendment guarantees the "right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures." But guaranteeing that right has become increasingly complicated in the digital age. One longstanding legal theory dating to the 1970s, known as the Third Party Doctrine, asserts that once a person gives personal information to a third party, for instance, to a cell service provider, he or she loses the expectation of privacy, and the information can be given to other entities without the person's explicit permission -- without violating the Fourth Amendment.

The Obama administration placed some limitations on surveillance technology, but mostly through policy. The Obama administration required the Department of Justice and Department of Homeland Security to obtain warrants for the use of their 400 Stingrays or cell site simulators, devices that mimic cell phone towers, so all phones within a range connect to it instead of their cell phone provider's nearest tower, and the devices collect cell phone data. The IRS also acquired the technology in recent years.

"But that's the kind of thing that Jeff Sessions could do away with with the stroke of a pen," said Alvaro Bedoya, founding executive director for the Center on Privacy and Technology at Georgetown University Law Center.

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Law enforcement uses tracking devices called "stingrays" to locate cellphones. But the technology also picks up personal information from other c...

Law enforcement agencies say Stingray technology helps them catch suspected criminals -- and it does. But privacy advocates fear the technology's ability to collect nearby cell phone owners' data without their permission or knowledge -- and often, without a warrant -- compromises Fourth Amendment rights.

Federal authorities have said the devices they use are not configured to collect the content of communications, but the capabilities of the technology aren't clear. That's partly because federal authorities have shrouded cell site simulators in mystery, sometimes dropping cases against criminal suspects rather than reveal their policing methods and agreements with private cell site simulator companies that swear the government to product secrecy in contracts.

The ability to put the warrant requirement "through the shredder" at any moment is why policy is an insufficient safeguard, said Matthew Feeney, policy analyst at the Cato Institute, a libertarian think tank.

"We're relying heavily on government policy rather than law, and that I think is a problem," Feeney said.

Many states also use automatic license plate readers, technology that can scan hundreds of plates per minute. In the 2008 election cycle, Virginia State Police used automatic license plate readers on attendees' cars at political rallies for Barack Obama and Sarah Palin, the ACLU revealed. Alone, license plates may not amount to much information, but police have the ability to check those plates against other records, and -- over time -- can observe patterns about a driver's habits, the ACLU argued.

Meanwhile, the federal government is quietly ramping up its surveillance approach at airports, using technology that was, "in most cases developed for the battlefield," Bedoya said.

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Delta and JetBlue are rolling out new ways to use the sophisticated technology on passengers, but not everyone is on board. Stacey Butler of CBS ...

U.S. Customs and Border Protection began testing facial recognition software -- called Biometric Exit -- at Dulles International Airport outside Washington, D.C., in 2015, and pilot programs are expanding to other large airports. The software -- the concept of which was first required by Bill Clinton-era legislation in 1996 -- is intended to check visa holders entering or leaving the country through facial matching systems. That scan can be checked against a person's passport. As Mr. Trump looks to toughen immigration policies, it's a timely tool.

But Bedoya worries the technology's use won't stop there.

"There aren't many people talking about biometric exit, when it might fundamentally change the way we travel," Bedoya said.

It's unlikely the technology will only be used on foreign nationals, Bedoya said. Many airports mix international and domestic terminals, and it's more practical and realistic to use the technology at the main Transportation Security Administration (TSA) checkpoint, Bedoya said.

"That means you have a flow of both domestic and international travelers," Bedoya said.

Once it's in place, facial recognition software -- like other kinds of policing technology -- can be used to match other federal databases and tell a story.

"We shouldn't forget that all of these tools can be put together," Feeney said.

"Drones can be used to mount a license plate reader," Feeney said. "Body cam footage could be linked to drone footage."

Congress has made some efforts to strengthen privacy in recent months. In February, the House passed the Email Privacy Act, which would require a warrant for any access to stored digital communications. But the Senate has yet to take any action on it, and threats of terrorism may easily quash any momentum on similar legislation, Slobogin said.

"If we have an event like Manchester in the United States -- or Manchester itself -- that might push Congress in the other direction," Slobogin said.

Absent much guidance from Congress in the way of laws, the courts are deciding the future of surveillance as it pertains to the Fourth Amendment, Slobogin said.

"Some of the lower courts have looked at warrants and searches and things of that nature, but the Supreme Court really hasn't weighed in on those kinds of issues," Bloom said.

Slowly, that's changing, as cases work their way up to the highest court in the land.

This year, the Supreme Court will decide United States v. Carpenter, on whether the warrantless seizure and search of historical cell phone records revealing location and movements of a person over the course of months is constitutional.

"That is arguably going to be the most significant Fourth Amendment case in decades," Feeney said.

The Third Party Doctrine theory "needs to be grappled with significantly," and could be reviewed in that case, Bloom said.

The lack of legal protection against an expanding availability of policing technologies may not concern law-abiding citizens, but it should, Feeney said.

"At the moment, we seem to be mostly concerned about radical Islamic terrorism," Feeney said.

"Maybe in 15 years it's progressives, or libertarians, pro-life people orpro-choice people," he added.

This, Feeney said, is the fundamental question people should ask themselves: "Would I be happy with the state of the Fourth Amendment if my enemy is in charge?"

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What is the future of privacy, surveillance and policing technologies ... - CBS News