The US Supreme Court [official website] heard oral arguments Tuesday on the cross-border shooting of a Mexican citizen by a US Border Patrol Agent. In Hernandez v. Mesa [transcript, PDF], the court is considering the extraterritorial application of the Fourth Amendment [text]. The court is also considering the application of qualified immunity depending upon legal status and the application of Bivens v. Six Unknown Federal Narcotics Agents [opinion] in this case. Petitioners argued that Fourth Amendment constraints should apply when there is a cross-border shooting involving a federal law enforcement officer on US soil resulting in an injury that is in close proximity. Respondents argued that the Fourth Amendment analysis is not applicable as Sergio Hernadez was seized in Mexico and never crossed into the US. Due to this distinction, Respondents argued there is a very clear and real border that cannot be stretched to turn this into an extraterritorial case as the US does not exercise any control or jurisdiction where the injury occurred.

Also Tuesday the court heard arguments in McLane Co. v. EEOC [transcript, PDF] in which it must decide whether a district court’s ruling in an Equal Employment Opportunity Commission (EEOC) [official website] subpoena matter should be reviewed de novo or deferentially. Petitioner argued that the matter should be subject to discretionary review as the EEOC’s investigated authority is limited by the relevance of the charge and not plenary. The petitioner further that it is traditional and common among the appellate courts to grant deferential review for subpoenas and search warrants. Finally, petitioner argued that in these matters due to the fact and context-intensive nature of the dispute, the District Court is best position to decide the matter and therefore deserve discretionary review. Respondent in return argued that because the court of appeals found legal error in the district court’s decision, its de novo review was consistent in subpoena enforcement actions. Respondent also argued that this is not an appropriate matter for the court as both parties agreed to de novo standard of review before the panel and the Ninth Circuit commonly applies such review. Furthermore, respondent argued that the Supreme Court should simply affirm the court of appeals decision instead of remanding the matter back to a lower court.