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Speaker 1: It sounds like a crazy but tragic law school hypothetical.

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Speaker 1: A Mexican teenager shot and killed on his countryside of

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Speaker 1: the U. S. Border by an American border patrol agent

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Speaker 1: on his side. It's an occurren that happens more frequently

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Speaker 1: than one might imagine. According to a lawyer for a

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Speaker 1: family in a case before the Supreme Court today, there

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Speaker 1: have been at least ten similar cross border shootings and

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Speaker 1: six deaths. The question before the Supreme Court today was

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Speaker 1: whether the boy's parents can sue the border agent, claiming

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Speaker 1: his constitutional rights were violated. The general rule is that

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Speaker 1: the U. S. Constitution doesn't protect non Americans when they

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Speaker 1: are not on US soil, but there are exceptions. A

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Speaker 1: decade ago, the Supreme Court allowed inmates being held at

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Speaker 1: Guantanamo Bay, the U. S. Naval base in Cuba, to

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Speaker 1: go to federal court to seek release. So does a

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Speaker 1: cross border shooting call for another exception. We'll talk with

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Speaker 1: Brianne Gorod, chief council at the Constitutional Accountability Center, and

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Speaker 1: Andrew Kent, a professor at Fordham University Law School. Welcome

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Speaker 1: to you both. Brianne, can you just lay out the

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Speaker 1: facts in this case for us and And we should

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Speaker 1: just note at the beginning that the way this case

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Speaker 1: is set up at the Supreme Court, the justices are

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Speaker 1: assuming that the facts as alleged by the family are true.

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Speaker 1: Sure well, thank you for having me. I mean, the

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Speaker 1: facts of this case are incredibly tragic. I don't think

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Speaker 1: anyone would disagree about that. A fifteen year old boy

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Speaker 1: was playing with some friends UM in a culvert of

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Speaker 1: the Rio Grand right at the border between El Paso,

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Speaker 1: Texas and or his Mexico. Um. They were playing, you know,

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Speaker 1: the kinds of games that kids play, running back and forth. UM.

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Speaker 1: One of those boys, UM was tragically shot in the

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Speaker 1: head and killed by a Customs Patrol border agent. And

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Speaker 1: and the question for the court now is whether the

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Speaker 1: mere happenstance that he happened to be just south of

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Speaker 1: the border as opposed to just north of the border

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Speaker 1: makes a difference from a constitutional perspective, whether because of

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Speaker 1: that that loan fact, his family can't receive any damages

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Speaker 1: UM to redress the really tragic loss that they've suffered.

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Speaker 1: And you it seemed at the Court today that the

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Speaker 1: conservative justices seem to be looking for a definitive rule

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Speaker 1: or a limit. Chief Justice Roberts said, how about the

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Speaker 1: case of a drone strike in Iraq. What's your reaction

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Speaker 1: to that particular bent, Well, the government certainly does prefer

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Speaker 1: the bright line rule that has historically governed here, which,

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Speaker 1: as you said at the outset, is that non citizens

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Speaker 1: outside the United States have constitutional rights. I should note

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Speaker 1: that that doesn't mean they don't have any legal rights.

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Speaker 1: A lot of times international law can provide pretty important

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Speaker 1: restraints on the way the United States government uses force

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Speaker 1: or does other things outside the border, and some important

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Speaker 1: United States statutes also restrain the government when it's acting

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Speaker 1: outside our borders against non citizens. But again, the bright

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Speaker 1: line rule has always been that the Constitution does not

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Speaker 1: do that for non citizens outside the US, and certainly,

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Speaker 1: just for the purpose of legal predictability, the government would

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Speaker 1: prefer that they know what the rules are and they

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Speaker 1: would prefer less restrainted for more leeway when they're acting

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Speaker 1: outside the borders. Um, probably the you know, worst situation

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Speaker 1: would be one if there's um kind of a mushy

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Speaker 1: case by case hard to know when whether the Constitution

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Speaker 1: is going to apply or not decision that comes out

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Speaker 1: of here, because then you know the government's going to

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Speaker 1: need to act as if the Constitution might apply while

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Speaker 1: not knowing whether it is or not, and there'd be

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Speaker 1: a lot of legal uncertainty. Brianna, I think you were

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Speaker 1: in the courtroom today, right, I was at the court Yeah, yeah, okay,

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Speaker 1: So how would you answer that hypothetical front that you

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Speaker 1: heard from the Chief Justice? Namely, he talked about the

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Speaker 1: idea that there might be a drone strike in Iraq

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Speaker 1: and uh it was controlled from US territory in Nevada,

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Speaker 1: and he wanted to know, how do we keep how

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Speaker 1: can we possibly rule for the Hernandez family in this

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Speaker 1: case without allowing a lawsuit over that drone strike as well. Yeah,

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Speaker 1: what I think is important to remember is the desire

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Speaker 1: for a bright line rule, which is understandable for all

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Speaker 1: the reasons that Andrew just said, doesn't mean that the

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Speaker 1: bright line rule has to be that there is no

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Speaker 1: remedy for Sergio Hernandez family here. You know, the rule

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Speaker 1: that Hernande's attorney offered, I think is a good one,

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Speaker 1: which is that you know, in a case where there

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Speaker 1: is a cross border shooting, so all of the conduct

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Speaker 1: occurs in the United States, and it occurs right at

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Speaker 1: the border, right in proximity to the border will there

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Speaker 1: there needs to be a remedy there. The Constitution needs

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Speaker 1: to apply, you know. Andrews certainly right that there are

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Speaker 1: other laws that might apply. But as a practical matter here, um,

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Speaker 1: the Herr Sergio Hernandez's family will have no remedy um

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Speaker 1: if the court concludes that the Constitution doesn't apply. And

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Speaker 1: we know that because there has been no prosecution of

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Speaker 1: his murder by of his murder by the United States,

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Speaker 1: and even that kind of prosecution wouldn't offer any redress

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Speaker 1: to his family here. So a bright line rule that

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Speaker 1: says where all the conduct occurs in the United States

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Speaker 1: and world occurs right in the proximity of the border, um,

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Speaker 1: you know, would not necessarily mean that there would be

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Speaker 1: a remedy in the case like the one the chief

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Speaker 1: Just as positive where you have a drone that goes

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Speaker 1: you know, well past the border, um and enter someone

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Speaker 1: you know well within the confines of mexicown Andrew just

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Speaker 1: as Kennedy was seen as possibly a swing vote here,

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Speaker 1: but from his comments today, he seemed to be solidly

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Speaker 1: on the side that cross border incidents were in the

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Speaker 1: realm of foreign affairs to be resolved by Congress and

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Speaker 1: the State Department. So there are two important issues in

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Speaker 1: this case that are very legally significant outside you know,

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Speaker 1: this particular case. One is what we've been talking about,

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Speaker 1: which is does the Constitution apply extra territorially to protect

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Speaker 1: non citizens? I think they're Justice Kennedy. You know, he's

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Speaker 1: indicated in the decision you reference to the outside the

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Speaker 1: case about guantanam Obey in two thousand eight, and also

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Speaker 1: in a concurring opinion you are, he suggested that he

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Speaker 1: thinks that kind of looking at the totality of the circumstances,

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Speaker 1: looking if there's any practical reasons why the Constitution shouldn't

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Speaker 1: extend outside the US borders is the right approach. He's

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Speaker 1: very much not a bright line guy rule in this area,

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Speaker 1: so you know he might be inclined to support the

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Speaker 1: Hernandez family on that issue. But the second very important

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Speaker 1: issue is one about whether there should be a judicially

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Speaker 1: created right to sue for money damages. Here, Congress has

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Speaker 1: not written a statute that allows folks to sue US

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Speaker 1: officials in these content in these circumstances for violating the

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Speaker 1: Constitution in order to get money damages and the Court

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Speaker 1: in recent years, including Justice Kennedy, has been quite reluctant

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Speaker 1: to step into what they see at Congress's role in

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Speaker 1: determining whether there should be a money damage's remedy. So

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Speaker 1: Justice Kennedy himself might be, uh, you might be split

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Speaker 1: on this on this issue, might possibly be favoring extra

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Speaker 1: excuse me, extra territorial constitutional rights, but might not think

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Speaker 1: that it was right for the Court to allow money

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Speaker 1: damages suit to go forward. Um. It's hard to tell

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Speaker 1: from oral argument, but you know that given his path votes,

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Speaker 1: that seems possible that he might be leading in that

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Speaker 1: in that direction. We're talking with Brian Garra of the

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Speaker 1: Constitutional Accountability Center and Andrew Kento Fordham University Law School

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Speaker 1: about today's Supreme Court argument in a case involving a

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Speaker 1: shooting across the US Mexican border. Um, Andrew, one of

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Speaker 1: the things that came up in the argument today from

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Speaker 1: Justice Brier Um, I'll paraphrase what he was suggesting, but

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Speaker 1: basically he was suggesting that because this culvert that divides

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Speaker 1: the two countries there um is jointly maintained by the

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Speaker 1: US and Mexico, that the U s maybe has enough

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Speaker 1: of a connection there that the Court could allow a

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Speaker 1: lawsuit over this shooting without necessarily opening up a Pandora's box.

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Speaker 1: Does that sound like a plausible limit the court could draw.

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Speaker 1: Maybe what he's doing is trying to analogize this case

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Speaker 1: to the case we've been talking about about Guantanamo Bay.

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Speaker 1: There the Supreme Court, Justice Kennedy and Justice Brier were

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Speaker 1: in the majority on this. They said, well, we acknowledge

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Speaker 1: that historically the Institution is not applied outside US borders

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Speaker 1: to protect non citizens. But here at Guantanamo, even though

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Speaker 1: it's technically Cuba territory, the United States has pervasive control

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Speaker 1: over it. It It has a permanent lease with Cuba. It's

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Speaker 1: a US military base. Uh, no one comes in or

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Speaker 1: out without USA, so, etcetera. And I think what Justice

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Speaker 1: Brier is saying is maybe, because of joint Mexican US

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Speaker 1: policing of the border area where the shooting occurred, we

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Speaker 1: should think of this as kind of akin to Guantanamo

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Speaker 1: Bay and say the Constitution can go a little bit

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Speaker 1: outside US borders. Um, you know, I note that there's

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Speaker 1: plenty of places in the world where the United States

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Speaker 1: cooperates with other countries to provide security or other things

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Speaker 1: the US embassy, US military bases, etcetera. You know, the

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Speaker 1: US border is not the only place where it can

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Speaker 1: be said that there's some blending of um of US

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Speaker 1: responsibilities with those of a foreign country. But you know,

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Speaker 1: Justice probably might well think that that is a plausible

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Speaker 1: limitation for this case. Brian, when you think about a

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Speaker 1: case like this and what the court ought to do,

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Speaker 1: is the point here that they should really be looking

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Speaker 1: at whether somebody with a connection to to what could

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Speaker 1: be US quasi territory or US activity, has rights or

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Speaker 1: should it be about deterring the misconduct potential misconduct by

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Speaker 1: U S agents. But I think it's a little bit

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Speaker 1: of both. I mean, one, it's important to recognize that

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Speaker 1: a critical role of the courts, and this has been

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Speaker 1: the case since the nation was was founded, is established

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Speaker 1: a check on illegal action by the other branches. In

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Speaker 1: an important way, UM, in which the courts do that

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Speaker 1: is by providing redress to those who are injured um

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Speaker 1: by illegal and abusive action UM by government officials. I

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Speaker 1: think a real concern here UM is that you know,

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Speaker 1: if the court were to adopt the government's view, it

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Speaker 1: would essentially be saying, um that the government can switch

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Speaker 1: the cross of tuition on or off at the border.

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Speaker 1: And you know, as Justice Brier pointed out at argument

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Speaker 1: this morning, you know that won't just affect Mexican citizens.

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Speaker 1: When we're talking about this area right at the border

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Speaker 1: between the countries. You know, there are um hundreds of

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Speaker 1: thousands of people who go back and forth of course

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Speaker 1: the border every day. UM. The kids who were you know,

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Speaker 1: playing were this time Mexican, but they could easily have

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Speaker 1: been American kids. And in fact, you know, there's data

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Speaker 1: that shows that there have been you know, I think

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Speaker 1: forty two UM shootings by Custom patrol agents at the border,

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Speaker 1: and you know a number of the people who've been

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Speaker 1: killed the result of those shootings, UM are Americans. And

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Speaker 1: so that's just you know, one reason why, UM, it's

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Speaker 1: important that the courts to be able to provide redress

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Speaker 1: um to individuals who are injured by this kind of

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Speaker 1: illegal action. Andrew, if the suit does not go forward,

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Speaker 1: it seems like the line that we may end up

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Speaker 1: with is that if Sergio Hernandez had been on the U.

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Speaker 1: S side of the border, then he might be able

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Speaker 1: to see the border agent because he was thirty feet

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Speaker 1: on the other side. Of the border he cannot sue.

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Speaker 1: Is that a Is that a reasonable distinction that we

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Speaker 1: could end up with. It is, but with a big qualification. UM.

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Speaker 1: I absolutely agree that UM. Providing some compensation to people

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Speaker 1: who have been injured or to their families if the

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Speaker 1: person has been killed, and deterring unreasonable uses of force

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Speaker 1: are both very important things and both something that the

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Speaker 1: courts can have a real role in, you know. With Historically, though,

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Speaker 1: these cases have gone forward just under state law or

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Speaker 1: under the common law, not as a constitutional suit. And

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Speaker 1: that's a big difference. If they if they were able

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Speaker 1: to sue Agent Masa, the border control agent who who

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Speaker 1: did the shooting here, under the common law, there would

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Speaker 1: not be a precedent created that, you know, so we

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Speaker 1: wouldn't be having these conversations might disaffect drowne strikes in Iraq.

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Speaker 1: We would just be talking about whether he acted wrongfully,

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Speaker 1: whether the family should be compensated, and all that. I

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Speaker 1: wish that that kind of system were in place here. Unfortunately,

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Speaker 1: combined actions by the Congress and by the Supreme Court

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Speaker 1: have meant that in modern times, if if a super

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Speaker 1: compensation like this goes forward, it generally has to be

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Speaker 1: under the Constitution, and that just opens this whole bag

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Speaker 1: of worms that we're talking about. What you know, what

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Speaker 1: are the limits? How far does this go? Is this

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Speaker 1: going to affect electronic surveillance against you know, against the Kremlin, right,

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Speaker 1: because you know, the Constitution governs some huge range of

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Speaker 1: US government activities. So I think it might well be

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Speaker 1: reasonable to draw the line here. The like I said,

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Speaker 1: I very much wish that we had in place the

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Speaker 1: old style of compensation system that we used to. We

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Speaker 1: used to so this family, you know, if the shooting

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Speaker 1: was unjustified, you could get the address that they deserve.

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Speaker 1: I want to thank our guests Andrew Kent of Fordham

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Speaker 1: University Law School and Brian god of the Constitutional Accountability

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Speaker 1: Center talking about the cross broad border shooting case at

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Speaker 1: the Supreme Court today, there is at least the possibility

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Speaker 1: and perhaps the likelihood, that the eight sitting justices could

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Speaker 1: divide four to four that would leave us potentially with

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Speaker 1: UH Supreme Court nominee Neil Gorcie to cast the deciding

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Speaker 1: to vote that could happen after a reargument. UH. Coming

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Speaker 1: up on Bloomberg, we talked about parents who pay for

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Speaker 1: college and then declare bankruptcy. This is Bloomberg