In a case pending before the U.S. Supreme Court raising the question of whether a border patrol agent may be held responsible under the U.S. Constitution for shooting a playing child who was hit and killed outside the United States border, Professor Gregory Sisk has filed an amicus brief emphasizing the absence of any other remedy for this wrongful killing.

In Hernandez v. Mesa, No. 15-118, the lower federal courts held that the parents of the Mexican child could not recover under the Constitution because the boy was on Mexican soil when he was shot by the American federal agent. The Supreme Court granted review to consider whether the Fourth Amendment’s prohibition on unjustified deadly force is restricted to the borders of the United States or has some extraterritorial force. The Court also asked the parties to address whether a so-called Bivens constitutional tort claim should be recognized here.

Represented by the law firm of Wilmer Cutler Pickering Hale & Dorr, Sisk submitted a “Friend of the Court” brief explaining that a constitutional tort claim is the only possible remedy for the child’s survivors in this case. The U.S. government is immune from liability because of the “foreign country” exception to the Federal Tort Claims Act, and the individual officer is also immune from liability under state tort law through the federal Westfall Act because he was acting within the scope of his duty. Thus, Sisk argued, the exception to Bivens when there is another adequate remedy under non-constitutional law simply does not apply here and would not prevent the Court from recognizing the Fourth Amendment claim against the officer.

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