Three Questions about Hernandez v. Mesa

Posted: March 12, 2017 by Nazim in Uncategorized

This week’s case, Hernandez v. Mesa, untangles the procedure hurdles that result when a U.S. government official standing on U.S. soil shoots and kills a Mexican citizen standing on Mexican soil.  Brett and Nazim discuss three big procedural hurdles, and why twenty feet in either direction make this case a lot easier to resolve.  The law starts at (09:30), but please start at (06:26) if you live in the Bay Area and don’t want to hear about cool countries you can party in at age 19.

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Comments
  1. Nazim says:

    One of the things we screwed up was that we failed to mention that drone attacks are covered under the government’s power to use military force, as highlighted by the fantastic listener comment below:

    Hi Bret and Nazim,

    On your podcast today you were mentioning the difference between a military drone shooting and a border guard shooting in a Bevins Claim, however I think you missed an important distinction and it is a little nuanced but important. The biggest difference is the distinction of who makes the decision to shoot and what branch of the government the person is located in.

    In the U.S. we consider CBP to be law enforcement and not military which is the biggest distinction so this should be treated more like a police shooting than a military shooting, especially when figuring out qualified immunity. Your example of the drone operating outside of the U.S. but being controlled by a person in the U.S. does make sense at first glance, however ultimately the drone pilot does not make the decision to shoot, he or she is just a solider following orders, so if you draw your argument to it’s logical conclusion all military actions are decided in the United States. As the Generals and the President are in the United States when the decision to shoot a target, and this authorization is usually granted by Congress in a declaration of war or an Authorization for Use of Military Force (AUMF). The border guard made the decision to shoot himself and was not following orders from the chain of command and an AUMF was not issued for actions in Mexico, so this ultimately should be treated more like a police shooting and not like a military shooting on foreign soil.

    Best,
    Brad

    Like

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