Fourth Amendment

Hernandez v. Mesa - Post-Argument SCOTUScast

SCOTUScast 3-30-17 featuring Steven Giaier
Steven Giaier March 30, 2017

On February 21, 2017, the Supreme Court heard oral argument in Hernandez v. Mesa. In 2010, Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican national, died after being shot near the border between El Paso, Texas and Juarez, Mexico by Jesus Mesa, Jr., a U.S. Border Patrol Agent. Hernandez’s parents, who contend that their son was on Mexican soil at the time of the shooting, sued Mesa in federal district court in Texas, alleging violations of the Fourth and Fifth Amendments. After hearing the case en banc, the U.S. Court of Appeals for the Fifth Circuit ultimately ruled in favor of Mesa, concluding that Hernandez could not assert a Fourth Amendment claim and that Mesa was entitled to qualified immunity on the parents’ Fifth Amendment claim.

There are three questions now before the Supreme Court: (1) whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States; (2) whether qualified immunity may be granted or denied based on facts – such as the victim’s legal status – unknown to the officer at the time of the incident; and (3) whether the claim in this case may be asserted under Bivens v. Six Unknown Federal Narcotics Agents.

To discuss the case, we have Steven Giaier, who is Senior Counsel for the House Committee on Homeland Security.

Courthouse Steps: Hernandez v. Mesa - Podcast

International & National Security Law Podcast
Steven Giaier March 08, 2017

On February 21, the Supreme Court heard argument in Hernandez v. Mesa. In July of 2010, a 15-year-old adolescent named Sergio Adrian Hernandez Guereca and his friends were playing along a concrete structure on the border of the U.S. and Mexico. When Jesus Mesa, Jr., a U.S. Border Patrol Agent arrived, he detained one of the youths on the border, and shot and killed Hernandez, who was hiding behind a pillar of the Paso Del Norte Bridge on the Mexican side of the border. Hernandez’s parents sued Agent Mesa under the Fourth and Fifth Amendment for the use of unlawful and disproportionate force. Agent Mesa argued that the Fourth and Fifth Amendments did not apply because Hernandez was not a U.S. citizen.

The District Court found for Agent Mesa, while the U.S. Court of Appeals for the Fifth Circuit held that the Fifth Amendment protections against deadly force applied but the Fourth Amendment did not, and that Agent Mesa should not receive qualified immunity. The main questions for the Supreme Court to answer are: Does the Fourth Amendment apply? Should qualified immunity apply to the border patrol agent? And can Agent Mesa make a Bivens claim?

Steve Giaier of the House Committee on Homeland Security attended oral argument and shared his perceptions.


  • Steven Giaier, Senior Counsel, House Committee on Homeland Security

Courthouse Steps: Ziglar v. Abbasi - Podcast

International & National Security Law Practice Group Podcast
January 27, 2017

Ziglar v. Abbasi is the result of over a decade of remands and appeals. The case was originally filed by the Center for Constitutional Rights on behalf of incarcerated Muslim, South Asian, and Arab non-citizens who were targeted after 9/11 by law enforcement as “terrorism suspects.” The defendants in the case, high level officials in the Bush administration, such as Attorney General John Ashcroft and FBI director Robert Mueller, and low level detention officials, filed a motion to dismiss which was rejected by the in the District Court.

In 2009, the Supreme Court decided in Ashcroft v. Iqbal that government officials were not liable for discriminatory actions of their subordinates without evidence they directly ordered the actions. Meanwhile, five of the petitioners in Ziglar settled with the government, and the case was remanded to the District Court and amended. In 2010, the District Court granted a new motion of dismissal, but only for the high level officials. This dismissal was reversed by the Second Circuit and then the government petitioned the Supreme Court for review.

Professor Jamil Jaffer joined us to discuss the oral argument of this case, which was held on January 18.  


  • Prof. Jamil N. Jaffer, Adjunct Professor of Law and Director, Homeland and National Security Law Program, Antonin Scalia Law School and former Chief Counsel and Senior Advisor, Senate Foreign Relations Committee

Ashcroft v. Abbasi: 9/11 Detainee Case

Short video featuring Jamil Jaffer
January 15, 2017

Can federal officials be held liable personally for enforcing the “hold until clear” policy following the attacks on 9/11?   Jamil Jaffer, Director of the Homeland and National Security Law Program at the Antonin Scalia Law School, explains the dispute in the upcoming Supreme Court Case Ashcroft v. Abbasi.   Questions before the Court include whether a group of individuals who were arrested immediately after 9/11 have standing to bring a Bivens claim for violation of their constitutional rights, whether the federal officials enforcing the policy are entitled to qualified immunity, and whether the officials acted based on racial discrimination or a concern for national security.  The Supreme Court will hear oral argument on January 18th.

Justice Scalia and the Criminal Law - Audio/Video

2016 National Lawyers Convention
Rachel Barkow, Stephanos Bibas, Orin S. Kerr, Paul J. Larkin, Stephen J. Markman, David Stras, John G. Malcolm November 23, 2016

Justice Scalia's originalism had an important impact on our nation's criminal law. While sometimes overlooked, his commitment to the rights of criminal defendants, as rooted in the Constitution, is indisputable. He forthrightly addressed new Fourth Amendment issues including technological advances in surveillance, revived the Sixth Amendment's jury and confrontation clauses, remained mindful of both common law and substantive criminal law concerns, and in many instances swayed his fellow justices. This panel will delve into these areas and discuss if and how Justice Scalia's work will continue to affect future Court decisions.

This panel was held on November 17, 2016, during the 2016 National Lawyers Convention in Washington, DC.

Criminal Law: Justice Scalia and the Criminal Law
3:30 p.m. – 5:00 p.m.
East Room

  • Prof. Rachel E. Barkow, Segal Family Professor of Regulatory Law and Policy and Faculty Director, Center on the Administration of Criminal Law, New York University School of Law
  • Prof. Stephanos Bibas, Professor of Law and Criminology and Director, Supreme Court Clinic, University of Pennsylvania Law School
  • Prof. Orin S. Kerr, Fred C. Stevenson Research Professor of Law, The George Washington University Law School
  • Mr. Paul J. Larkin, Jr., Senior Legal Research Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation
  • Hon. Stephen J. Markman, Michigan Supreme Court
  • Moderator: Hon. David R. Stras, Minnesota Supreme Court
  • Introduction: Mr. John G. Malcolm, Director, Edwin Meese III Center for Legal and Judicial Studies, and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, The Heritage Foundation

The Mayflower Hotel
Washington, DC