Hernandez v. Mesa: Preserving the Zone of Constitutional Uncertainty at the Border

Alexandra A. Botsaris

In Hernandez v. Mesa, the Court declined to address whether a Mexican citizen standing on Mexican soil was entitled to Fourth Amendment protections when fatally shot by a United States Border Patrol Agent standing across the border in United States territory. This case exposes two critical problems facing our southwest border—the use of excessive force by Border Patrol agents and the lack of judicial remedy available to those subjected. While the Supreme Court’s willingness to hear the issue reaffirms its importance, the Court has yet to provide significant guidance on how to apply the Constitution extraterritorially to resolve these disputes. By remanding the case back to the Fifth Circuit, the Court left the law at a standstill where an immediate solution is necessary.