Two weeks ago, I wrote about an important new decision by the US District Court for the District of Arizona, holding that the Fourth Amendment does apply to the cross-border shooting of a Mexican national in Mexico by a US border patrol agent standing on US soil in Arizona, and that, based on the facts as alleged in the complaint, the officer-defendant was not entitled to qualified immunity. As I explained back then, the district court’s decision expressly disagreed with the en banc Fifth Circuit’s resolution of an eerily similar issue in Hernandez v. United States. In Hernandez, the Court of Appeals had held that (1) the Fourth Amendment did not apply in light of the Supreme Court’s 1990 decision in Verdugo-Urquidez; and (2) it wasn’t clearly established at the time of the shooting whether the Fifth Amendment applied, such that the officer-defendant was entitled to qualified immunity. Thus, the Arizona district court’s decision, if affirmed by the Ninth Circuit, would set up a circuit split not just on how the Constitution applies to cross-border shootings of foreign nationals (with obvious implications elsewhere), but also on how qualified immunity applies in cases in which the officer doesn’t know, at the time he pulls the trigger, whether or not the victim has constitutional rights.

Yesterday, the plaintiffs in Hernandez filed a petition for a writ of certiorari in the Supreme Court, asking the Court to review the en banc Fifth Circuit’s April ruling. The petition presents two questions:

  1. Does a formalist or functionalist analysis govern 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?; and
  2. May qualified immunity be granted or denied based on facts—such as the victim’s legal status—unknown to the officer at the time of the incident?

As the petition argues (and as I noted two weeks ago), there is already a clear circuit split on the second question given the Ninth Circuit’s ruling in Moreno v. Baca. As for the first question, the petition argues that there is a fundamental tension between the functionalist approach the Ninth Circuit has taken to other extraterritorial constitutional rights (in cases like Ibrahim) and the formalist approach the Fifth Circuit took to the Fourth Amendment in Hernandez.

Not surprisingly, given my earlier post, I completely agree with the petition that these issues are worthy of the Supreme Court’s attention–not just in the unfortunately recurring context of cross-border shootings, but in the more general context of the Fourth Amendment, where courts and commentators alike continue to be unsure of how to read Verdugo-Urquidez together with Boumediene. The harder question–which may well turn on how the government responds to the petition–is whether the Justices will be inclined to wait to see how the Ninth Circuit resolves the appeal in Rodriguez, or whether they’re sufficiently convinced that there’s already a clear division of authority to take these two issues now. If the latter, then add two more massively important constitutional questions to what’s already shaping up to be a(nother) massively important Supreme Court Term. And with the still possible cert. petitions in al Bahlul and Turkmen, this could all be setting the stage for the Supreme Court’s most important national security Term in over a decade.