SCOTUS Hints At Middle Ground In Travel Ban Ruling

On Monday, the last day of the term, the Supreme Court granted cert on the travel ban cases and partially granted the government’s petition for a stay, meaning that portions of the travel ban will go into effect. The court issued a per curium opinion explaining its decision (while avoiding the substantive issues). Gorsuch, Thomas and Alito partially concurred (they wanted a full stay). That cert was granted was not surprising, but certain aspects of the substance and breakdown of the court’s opinion were telling.

The primary takeaway is that the scope of the stay closely tracks the plaintiffs’ theory of the case on the constitutional issues while also suggesting that the court is not inclined to find in the plaintiffs’ favor on the statutory issues. In terms of the stay, the Court allowed the government to bar those individuals with no “bona fide” connections to the United States, but did not permit the barring of those with said connections. This is interesting because it mirrors Plaintiffs’ constitutional arguments and suggests that the Court will find in Plaintiffs’ favor on the Mandel/Din test that has been the focus of much of the briefing by the parties.

As explained before, the two main substantive issues  are that 1) the ban is invalid statutorily, in its entirety, and 2) that it is invalid constitutionally, for those with connections to the United States. The Fourth Circuit relied on the constitutional claim while the Ninth Circuit relied only on the statutory issue, ruling that Trump simply lacked the authority to issue the travel ban. Such a statutory ruling would necessarily invalidate the entire travel ban. I had suggested that the statutory issue may be an attractive option for the court since it would avoid ruling on the constitutional issues.

But, from the looks of it, I am probably wrong, and the Court seems destined to rule on the constitutional issues, on Plaintiffs’ terms. Although the government argued that the courts did not even have the power to review the ban, ultimately most observers agreed that the constitutional case would ultimately come down to a test set forth in two cases, Mandel and Din, which I have described before. Notably, however, because the Supreme Court has repeatedly ruled that non-resident, un-admitted aliens possess no constitutional rights themselves, only those in the United States with connections to the aliens would have standing to sue. When such connections do exist, the court evaluates the claim by determining whether there is a “facially legitimate and bona fide reason” for the ban. The plaintiffs have argued that the government’s reason was not bona fide because it was actually motivated by anti-Muslim prejudice; obviously the government disagreed, and the key issue in this case is probably whether the government can prove their bona fide reason.

That gets us back to the scope of the stay. The Court declined to continue the injunction against the ban entirely, which it probably would have done had it thought that the statutory argument had merit. Instead, the Court allowed in those with connections to the U.S.; in other words, those who could win under the Mandel/Din test are protected, while those unprotected by such a test are similarly unprotected by the injunction.

A fight squarely on the “bona fide” requirement is not what the government wants at all. In its initial arguments on the original EO, the government bizarrely argued that the courts do not have the authority to review the travel ban at all, and then the next round argued that the travel ban was valid because it was authorized under statute, conveniently ignoring that the constitution trumps (sorry) statutes. Discussing the bona fides of the government’s reasoning opens it up to a discussion of Trump’s public statements. The fact that the Court evaluated the stay petition, implemented it partially, yet kept the injunction in place as to this aspect does not bode well for the government.

It bears noting that Justices Thomas, Alito and Gorsuch dissented to that portion of the ruling, believing that the entire lower court injunction should be stayed, and that thus the entire travel ban should be put into effect. At this point, you have to assume that the government already has three votes going into oral argument.

Finally, the Court also ordered briefing on whether the travel ban litigation became moot on June 14, when the travel ban technically expired. This mootness issue was raised by the State of Hawaii at the Supreme Court and touches on a bigger problem for the government: the stated purpose of the ban was to provide the government time to conduct a review, and it has had – and will have had – plenty of time to conduct a review. Thus, by the time the case is argued, why is the ban even necessary at that point? As I (and many others) wrote a couple weeks ago, the DOJ has put itself in a pickle here, and the mootness issue suggests that the court is cognizant of that fact. The Court even noted in it opinion that the government did not ask for expedited argument. The government may have a hard time arguing that the ban has any purpose being applied prospectively.

Further, the Court may see this as a way to ultimately give both sides what they want. After all, argument will be four months from now, longer than the actual ban itself. So, over the summer, the government will effectively get its travel ban, for those with no connections to the United States. Then, at that point, the court would presumably be saying that the travel ban is no longer in effect and the lower court rulings prior to June 14 would remain good law. 

Look, obviously, the ultimate ruling on the merits will not automatically mirror the scope of the stay, and the addition of a question presented does not guarantee a particular answer to that question. So, take all of this with a giant grain of salt (Maldon or pink Himalayan, both known for their size, are probably the way to go here). But, both of my observations above – about the scope of the stay and the addition of the mootness question – suggest that the court is trying to forge a middle ground.


SCOTUS Takes Up Political Gerrymandering, Round 3

In many politically important cases before the Supreme Court, prognosticators often (correctly) surmise that Justice Kennedy will be the swing vote. However, on Monday the court took up a redistricting case, Gill v. Whitford, where we not only think Justice Kennedy will be the swing vote, he already has been the swing vote on the very same issue before the court and will surely be so again here.

The issue of political gerrymandering has made its way up to the high court on numerous occasions previously. However, the standard for political gerrymandering claims has actually yet to be definitively decided, despite the court’s best efforts on at least two prior occasions.

In Davis v. Bandemer, 478 U. S. 109 (1986), the Supreme Court dealt with the question of whether partisan redistricting could ever give rise to a justiciable equal protection claim. The court, 6-3, held that such claims were indeed justiciable, but could not agree on the appropriate legal standard. So, essentially, we agree that there is a standard, but we can’t agree on what it is yet.

The four-Justice plurality concluded that plaintiffs could win only upon a showing of “both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” So, intent and effect. The concurring opinion, on behalf of two Justices, agreed with the plurality that a plaintiff should show intent and effect, but believed that the intent of the legislature must have been solely for partisan ends.

Eighteen years later, the court tried again in Vieth v. Jubelirer, 541 U.S. 267 (2004). However, the court fractured there as well and actually took a step backwards. By a vote of 5-4, five justices rejected the plaintiffs’ political gerrymandering claim and also agreed that no discernible, manageable standard existed at all. These five justices rejected every possible standard presented to them, including the standards previously proposed by the plurality and concurring opinions in Davis.

That is where things go haywire. Of those five justices, a four-justice plurality found that no discernible standard could be established and that partisan gerrymandering claims were simply not justiciable. However, Justice Kennedy – the fifth vote against the plaintiffs – found that while no adequate standard had yet been devised, future courts should not be foreclosed from identifying one. The four liberal justices found that an adequate standard already existed.

Essentially, the four conservative justices found that no adequate standard existed or could ever exist, and the four liberal justices thought that there already existed an adequate standard. Then there was Justice Kennedy, all by himself, finding that no adequate standard currently existed, that it might exist in the future, that he didn’t know what it was, and that he was not preventing courts from developing such a standard.

In discussing what type of standard would be appropriate, Justice Kennedy implored courts to exercise “great caution” so as to avoid an “unprecedented intervention in the American political process.” Thus, Kennedy wrote,

“A determination that a gerrymander violates the law must rest on something more than the conclusion that political classifications were applied. It must rest instead on a conclusion that the classifications, though generally permissible, were applied in an invidious manner or in a way unrelated to any legitimate legislative objective.”

Kennedy could not identify such a standard at the time. However, “[t]hat no such standard has emerged in this case should not be taken to prove that none will emerge in the future.”

So, that is where we are now: asking whether Justice Kennedy can be convinced that an appropriate, manageable standard has now been identified. Enter Gill v. Whitford.

The case deals with the Wisconsin State Assembly redistricting plan. Wisconsin is a closely divided swing state. Obama won Wisconsin in 2008 and 2012, and Trump won in 2016; the state has one democratic and one republican senator, and statewide vote totals typically hover around 50/50. However, due to a redistricting plan, “Act 43”, in 2012, 2014 and 2016, Republicans won over 60% of the seats even though the statewide vote remained nearly tied.  The District Court found that Act 43 “was intended to burden the representational rights of Democratic voters.” The three-judge District Court panel then struck down Act 43.

After Act 43 was struck down by the District Court, Wisconsin petitioned for cert to the Supreme Court and also asked for a stay of the District Court’s ruling. The court granted cert on Monday and also granted the stay petition by a 5-4 margin, with Kennedy in the majority along with the other conservatives. Given the court’s breakdown on the stay motion, it seems reasonably clear that the four liberals will be voting to uphold the ruling of the District Court on its merits.  Thus, Kennedy is again in the middle of a deeply divided court.

That gets us to the legal standard adopted by the District Court and now being reviewed by the Supreme Court. The District Court required a plaintiff to demonstrate: 1) discriminatory intent, 2) a large and durable discriminatory effect, and 3) a lack of a legitimate justification. This hinges on intent and effect like the rejected standards of yesteryear, but it also requires a third prong  seemingly tailored to Kennedy’s Vieth concurrence: a lack of a legitimate justification.

This may pass muster because it closely tracks Kennedy’s own words in Vieth and is, as a practical matter, an extraordinarily tough standard for plaintiffs to meet. Under this standard, a legislature’s redistricting plan would be upheld if the state could simply demonstrate a legitimate, non-invidious reason for it. This is similar to but more difficult than even the familiar “rational basis review”, which upholds governmental action against non-suspect classes when it is rationally related to a legitimate governmental purpose. Under both standards, providing the court with a legitimate reason for the conduct is sufficient to withstand judicial scrutiny. In fact, under the proposed rule here, the plaintiffs would then also be required to demonstrate discriminatory intent and effect. 

Based on his history on this issue, Justice Kennedy is not going to endorse an easy standard for plaintiffs in these cases, so proposing one would be pointless.  Indeed, the proposed standard here would uphold all but the most brazen gerrymanders, and that may be the point.

Ultimately, we know that Justice Kennedy wants to thread the needle between the protection of fundamental individual rights and the unnecessary judicial intrusion into the political process. Whether that is done here remains to be seen, but rest assured that it will be Justice Kennedy making that decision on behalf of the court.

Trump Travel Ban, Part Infinity: Yossarian Edition

I wrote earlier this week about how the Ninth Circuit’s ruling on the travel ban would affect the proceedings in the Supreme Court. When discussing the narrowing of the injunction to permit the White House to conduct an internal review of visa screening procedures, I argued that it would now be incumbent on the Trump Administration to promptly commence such a review or else risk blowing up the facial raison d’être for the ban. I still believe that to be true. However, after reading subsequent filings by the parties in the Supreme Court and commentary regarding same, I have realized that the narrowing of the injunction places the White House in a much bigger pickle than I initially believed.

As background, Trump’s stated reason for the original 90 day travel ban and its successor EO was that the White House needed to conduct a review of visa vetting procedures. In a well-reasoned tweetstorm, the indispensable and increasingly omnipresent Steve Vladeck aptly explained the government’s stated reason for the ban: “the travel/entry ban was not an end unto itself, but a means to help carry out the real goal of the EO: new vetting rules.” (Yes, I just quoted a tweet, but that seems perfectly legitimate given the subject matter. The Ninth Circuit says they’re admissible now.)

While the original ban itself was enjoined by the Western District of Washington before it ever began, the review process was not, and the White House remained free to conduct such a review. Once a new travel ban was announced, the District of Hawaii then implemented an injunction which not only blocked the ban but also blocked the review process from occurring as well, roughly 45 days after the first EO’s review was to initially begin. As of the Ninth Circuit’s ruling on Monday, however, the DOJ is now free to proceed with the review. As noted above, the Trump Administration needs to begin this review or else it proves that it was merely pretext for the ban. Indeed, today the DOJ has indicated that it will now conduct the review because of the Ninth Circuit’s narrowing of the Hawaii injunction.

However, Vladeck pointed out that by conducting the review, the Trump Administration undermines the entire purpose for the ban. If the White House is indeed able to conduct this review process now, then why was the ban ever actually necessary? The whole point was to conduct the process that it is now conducting without such a ban being in place.

This point is compounded by the fact that the DOJ has not asked for expedited argument. This means that the 90-day review period will surely have concluded prior to a decision by the court. At that point, what is the point of the travel ban at all? The ban was to facilitate a review process which will have already concluded by the time the court decides the issue.

Hawaii’s counsel yesterday made a similar point: because more than 90 days have passed since the original EO and nearly 90 days since the second EO, this whole case will be moot by the time it gets to the Supreme Court. While I do not think that this argument holds water especially given the Hawaii stay of the review process, the point is clear: the Supreme Court will be deciding the fate of a travel ban which would have – on its face – already concluded had it been allowed to run its course.

This puts the White House in a Catch-22. If it does not conduct the review, then it risks destroying the stated rationale for the ban. If it does conduct the review and the ninety-day period concludes, then the ban is no longer necessary. The one acceptable middle position would have been to seek expedited argument so that the review would be ongoing at the time of argument, but the DOJ elected not to take this tact.

The DOJ could and likely will argue that while it is conducting its review now, said review will not be fully efficient or effective until a shutdown is implemented. But oral argument may not be until October, nine months after the original ban; can the DOJ credibly argue at that point that its ability to conduct a review which would have taken three months under optimal conditions has been so hamstrung that it couldn’t be completed in nine? I don’t think so.

Vladeck does seem to suggest that the DOJ was simply wrong in commencing the review process, which in turn would mean that the Catch-22 I described above wouldn’t really exist. I disagree. The argument that the White House is conducting a review – albeit a hobbled one – is much stronger than simply doing nothing when it is permitted to act. Conducting the review now, immediately after the Ninth Circuit’s narrowing of the injunction, is the one bit of urgency that the DOJ or White House has expressed during this saga. It makes more sense to argue that it had a national security imperative to begin a flawed review immediately rather than waiting for the Supreme Court to enable an unfettered review many months from now. Regardless, neither way is optimal, and that’s my entire point – the DOJ is now in prime “damned if you do, damned if you don’t” territory.

Finally, this situation is one of the White House and DOJ’s own making. Their stated rationale for the ban was the urgent need to conduct a temporary review of vetting procedures, in the name of national security. That rationale probably doomed the ban from the start, because it lit a ninety-day fuse for the destruction of the ban’s stated usefulness. The White House and DOJ also bungled the rollout, failing to actually conduct such a review in the 45 day window it had, and then repeatedly refusing to take steps to expedite the inevitable path to the Supreme Court. The DOJ’s dilly-dallying – knowing that the clock was ticking until the court’s summer recess, not seeking immediate Supreme Court review, not asking for expedited argument, and then asking in mid-June for a delay in briefing (!) – undermines its own arguments that this is an urgent national security concern.

Ultimately, the White House may still win at the end of the day. But if they do, then it seems likely that such a result was preordained from the start, since neither the White House nor the DOJ has done themselves many favors.


Ninth Circuit Affirms Injunction Blocking Trump Travel Ban 2.0

On Monday, a Ninth Circuit panel mostly upheld the preliminary injunction against the Trump travel ban. Notably, the court did three things which were ostensibly designed with an inevitable Supreme Court showdown in mind: 1) it did not reach the constitutional issues, instead relying entirely on statutory grounds; 2) it struck down the ban without relying on Trump’s campaign statements, and 3) it slightly narrowed the scope of the injunction. These are all important, as will be set forth below.

I. Taking The (Statutory) Road Less Travelled

Much of the buzz about the travel ban has dealt with its constitutionality – whether it violates the Establishment Clause of the First Amendment. However, the travel ban has also been challenged on statutory grounds. While the Fourth Circuit’s ruling addressed only the constitutional issues and did not reach the statutory issues (as did the Ninth Circuit panel in the travel ban 1.0 case), the Ninth Circuit’s ruling this week did just the opposite. It was the first appeals court decision on either travel ban to address only the statutory arguments.

This is important because it lets the Supreme Court do three things that it loves to do: let issues “percolate” in the lower courts before taking them, exercise constitutional avoidance, and avoid sweeping devisions with unwanted or unintended consequences.

A. It’s Time For The Percolator

First, the court loves to let lower courts weigh in on big issues first. For some reason, every Supreme Court analyst and their mother refers to this as lower court “percolation”. Essentially, what lower court “percolation” means is that the Supreme Court does not like taking cases until at least one appeals court decides it first. It is quite likely that the Supreme Court would have wanted the thoughts of the lower courts on the statutory issue, but prior to this week no appeals court had decided either travel ban on statutory grounds. That has now changed, the statutory issue has been percolated, and the Supreme Court is now ready for its morning coffee.

B. Avoidance Like the Plague

Second, the court loves to avoid deciding constitutional issues when it can. Similarly, the court typically seeks to avoid controversial or deeply political issues, which it fears may affect its legitimacy. A ruling on statutory grounds would let the Supreme Court avoid a sweeping constitutional ruling and also partially mitigate the inevitable political fallout from its decision. Thus, the Ninth Circuit has provided the Supreme Court with a roadmap to strike down the travel ban while doing so on narrow, more palatable terms.

C. “We Write Some Words…”

Relatedly, the Supreme Court also tends to avoid issuing sweeping opinions with unforeseen or unwanted ramifications beyond the facts at hand. As Justice Breyer stated during oral argument in another case this year, “[w]e write some words…. The problem is other people will read those words, and there are all kinds of things that happen…” This is the Supreme Court’s general concern in a nutshell – that its rationale will be applied to circumstances well beyond just the facts of the particular case being decided.

A broad ruling on the constitutional issue would then apply to many other contexts, from subsequent presidents’ immigration decisions to equal protection claims generally. Trump’s presidency, obviously, is quite different than most presidencies; the Supreme Court will not want its opinion here to hamstring future presidents in engaging in run-of-the-mill immigration decisions or national security determinations. Essentially, the trick is to strike down the travel ban (if it is so inclined), while limiting the applicability of this ruling to different contexts. That is easier said than done.

II. Trump’s Campaign Statements

The issue of unwanted consequences also arises when discussing Trump’s campaign statements. Unlike the Fourth Circuit, the Ninth Circuit did not rely on Trump’s campaign statements in striking down the travel ban. There is a very real concern that the court’s reliance on Trump’s campaign statements will open the doors to using campaign statements against public officials in all sorts of litigation pertaining to government decision-making. The Supreme Court will be loathe to weaponize campaign statements by political candidates, and it will avoid using Trump’s campaign statements entirely if it can. To that end, the Ninth Circuit omitted such references. Again, this signals to the Supreme Court that it can strike down the ban while staying out of the thorniest part of the thicket.

III. Narrowing the Injunction

Lastly, the Ninth Circuit narrowed the scope of the lower court’s injunction, in that it now permits the White House to conduct an internal review of visa vetting procedures. This review served as the facial reason for the ban, which was to last 90 days (and 120 days for the Syrian refugee program) while the review was conducted.

Today, the clock begins ticking anew. At this point, there is no evidence that such a review ever began in the first place, but the government may have gotten lucky when it was barred from doing so by the District of Hawaii. Now, that excuse melts away, and it will be incumbent on the government to begin that vetting review in earnest. In the Supreme Court, the plaintiffs will certainly argue that if the ban was really about the review process – and not just pretext for banning Muslims – then the review would have begun immediately and would already be concluded. If there is little or no evidence that such a review has taken place at the time of Supreme Court briefing or oral argument, then the government’s stated rationale for the ban will be destroyed.

This aspect of the ruling is also important because keeping the injunction as-is would have certainly given the Supreme Court a good reason to grant certiorari. Barring the President from internally reviewing visa vetting procedures – which does not adversely affect anyone in and of itself – was something that didn’t make much sense. Although the Supreme Court is likely going to grant cert anyway, there is now one fewer reason to do so.


County of Los Angeles v. Mendez: The Ninth Circuit Going Rogue or Applying Conservative Legal Principles? (Wait, What?)

The case of Los Angeles v. Mendez, scheduled for oral argument this week, asks whether law enforcement officers can be held liable when they reasonably used force on a citizen, but nonetheless unreasonably created the scenario which gave rise to the need to use force in the first place. This case creates an interesting intersection of Fourth Amendment excessive force doctrine, search and seizure jurisprudence, tort law, protection of privacy in the home, and even the right to bear arms, and may present a rare case when conservative legal principles functionally expand police shooting liability.


In Mendez, two Los Angeles Sheriff’s Deputies entered a residential property without a warrant. They then encountered a shack located in the backyard of the residential property, in which Plaintiffs Angel Mendez and his then-girlfriend (now-wife) Jennifer Lynn Garcia were living at the time.  Mendez heard the officers searching the backyard, but the defendants did not identify themselves as officers. The officers barged into the shack, unannounced. At this point, Mendez, who happened to be holding a BB gun to ward off rats and other pests in the shack, began to sit up. One of the officers, upon seeing Mendez with a gun, yelled “gun!”, and both officers then fired upon Mendez and Garcia, injuring them.

It is established that the law enforcement officers in question did not use excessive force in shooting Plaintiffs Mendez and Garcia after they saw Mendez holding a firearm (which turned out to be a BB gun) and beginning to sit up. However, the twist lies in the fact that while the officers acted reasonably in shooting the plaintiffs, said officers may have nonetheless violated Plaintiffs’ constitutional rights by acting in a manner which provoked or caused the armed confrontation between themselves and Plaintiffs.


Excessive force cases are decided based on whether the force was reasonable, at the time of the shooting, from the perspective of the officer. Graham v. Connor, 490 U.S. 386 (1989). This issue of perspective is critical. Thus, regardless of the civilian’s actual intentions (or even the civilian’s actual conduct), if the officer reasonably perceived that he/she faced imminent risk of deadly harm, then the officer is legally permitted to shoot the civilian in question. Again, the reasonableness of the civilian’s conduct or intentions is irrelevant, as long as the officer reasonably believed that force was necessary.



At trial, the court found that the officers had not committed excessive force. However, the court did find the officers liable under a “provocation” theory, which has been adopted only in the Ninth Circuit. Under this doctrine, an officer may be held responsible for an otherwise reasonable use of force when the officer intentionally or recklessly provoked the violent confrontation in which the force was used, and the provocation was itself an independent Fourth Amendment violation. The Ninth Circuit upheld the jury’s verdict under its “provocation” doctrine, and also framed the Plaintiffs’ injuries as being reasonably foreseeable based on the initial unreasonable entry into the home:

“Under these principles, the situation in this case, where Mendez was holding a gun when the officers barged into the shack unannounced, was reasonably foreseeable. The deputies are therefore liable for the shooting as a foreseeable consequence of their unconstitutional entry even though the shooting itself was not unconstitutionally excessive force under the Fourth Amendment.”

Mendez v. County of Los Angeles, 815 F.3d 1178 (9th Cir. 2016)


The case presents an interesting issue of framing. The Court has been very reluctant to expand theories of liability in Fourth Amendment police shooting cases and has frequently granted qualified immunity in novel law enforcement excessive force situations, ruling that the unconstitutional nature of the officers’ conduct was not clearly established. See, e.g., White v. Pauly, __ U.S. ___ (2017); Mullenix v. Luna, 577 U. S. ___, (2015); City and County of San Francisco v. Sheehan, 575 U.S. ___ (2015); Plumhoff v. Rickard, 572 U.S. ___ (2014).  

Thus, the idea of adopting a new “provocation” theory in excessive force cases, which exists only in the traditionally-liberal Ninth Circuit, may not seem appealing to the Court. However, even members of the conservative wing of the Supreme Court may be willing to acknowledge that when officers unconstitutionally enter a civilian’s home, those officers are liable for  harms proximately caused by that violation. That is where this case gets interesting – although the court may not want to create a “new” theory of liability, it may not have any issue applying the long-established concept of proximate cause to this particular context. In fact, certain conservative principles may form the basis for a ruling for the plaintiff here.

For example, conservative Justices have been especially protective against government intrusion into one’s home. As the late Justice Scalia wrote in Kyllo v. United States, a case barring the police from using thermal imaging to “view” inside one’s home without a warrant, “[a]t the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” 533 U.S. 27 (2001)(emphasis added). That case produced the idiosyncratic majority of Justices Scalia, Thomas, Ginsburg, Breyer, and Souter (three of whom are still on the bench), and entrenched the Court’s heightened protection of the home in Fourth Amendment jurisprudence.

Further, the conservative justices have been very willing to protect the right to bear arms in one’s home, which was of course what Mendez was doing which caused the officers to shoot him in the first place. In D.C. v. Heller, another Scalia opinion, the Court held with a 5-4 all-conservative majority that the Second Amendment protects the right to own a firearm in one’s home. The Second Amendment critically protects the right the bear arms in “the home, where the need for defense of self, family, and property is most acute.” 554 U.S. 570 (2008). The Court concluded, “[i]n sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment…”

Here, Mendez was possessing a weapon in his own home, which is constitutionally-permissible behavior. As a direct result of his engaging in protected behavior, and not much else on his part, Mendez was shot by police. Thus, if the officers win, this case would essentially punish Mendez for engaging in constitutionally permissible behavior and would let the officers off the hook for committing and unconstitutional search of Mendez’s home. The conservative justices may see this as an opportunity to stealthily strengthen the right to bear arms, and it’s very plausible that they will not throw away their shot.


Lastly, the Supreme Court need not “expand” police liability to find for the plaintiffs, as it can instead view this case as one of proximate cause, as certain circuit courts have done.

It has long been held that causation is a necessary element of a constitutional claim. See Monroe v. Pape, 365 U.S. 167, 187 (1961) (Section 1983 is “read against the background of tort liability that makes a man responsible for the natural consequences of his actions.”). Some circuit courts have taken the next step of analyzing this particular factual scenario – an unreasonable search which leads to an otherwise reasonable use of force – in the framework of proximate cause. 

 In certiorari briefing before the Supreme Court, Mendez pointed to a decision by Justice Alito when he served as a Judge in the Third Circuit, Bodine v. Warwick, 72 F.3d 393 (3d Cir. 1995),  which adopted such a framework. In Bodine, a similar situation occurred where law enforcement officers conducted an unconstitutional search of a home which then led to a deadly confrontation. Justice Alito made clear that an officer’s liability for unlawful conduct is to be determined by “basic principles of tort law,” including principles of proximate cause. As a result, police officers who illegally enter a suspect’s home “would not be liable for harm produced by a ‘superseding cause”, but “would be liable for the harm ‘proximately’ or ‘legally’ caused by their tortious conduct.” The court held that if the jury were to determine “that the troopers’ entry was unlawful, it will be necessary to determine how much of the injury suffered by Bodine was proximately or legally caused by the illegal entry.” The court also recognized that while the illegal entry and excessive force claims are separate, “[t]he harm proximately caused by these two torts may overlap.” However, critically, then-Judge Alito made clear that liability  would “not necessarily include all harm resulting from the otherwise reasonable use of force to carry out the detention.” (emphasis added).

 Moreover, the Tenth Circuit has previously applied a proximate cause framework in a similar case in 2016; when an officer shot a plaintiff after unlawfully entering his home, the court stated that “because a reasonable jury could determine that the unlawful entry was the proximate cause of the fatal shooting of [Plaintiff], we need not decide whether [Defendant officer] used excessive force when he confronted [Plaintiff].” Attocknie v. Smith, 798 F.3d 1252 (10th Cir. 2015), cert. denied, 136 S. Ct. 2008 (2016). The Supreme Court denied cert there, meaning that it may in fact be willing to apply the proximate cause framework in cases similar to Mendez.

For what it’s worth, the Tenth Circuit applied this framework in a more recent but much more factually-convoluted case, Pauly v. White, and the Supreme Court summarily reversed it (seemingly on other grounds) earlier this year. Notably, while the plaintiffs cited Pauly in their certiorari briefing, they omitted it in their merits brief. The effect of Pauly on the Mendez case is unclear, however, especially since the Supreme Court previously denied certiorari on the much more straight-forward Attocknie case.

Regardless, the Supreme Court can easily view this claim within the rubric of proximate cause, rather than “inventing” a new theory of liability, and thus the Ninth Circuit’s decision seems less like a rogue decision and more like a reasonable expression of existing constitutional principles.


The Supreme Court could go a lot of ways with this one, from (in no order): 1) outright rejecting the provocation doctrine, 2) adopting the provocation doctrine (still within the realm of possibility depending on Justice Kennedy’s views), 3) applying a proximate cause standard and finding for the plaintiffs, 4) adopting the proximate cause framework but nonetheless finding that Mendez’s conduct was a superseding cause, 5) applying the proximate cause standard but remanding for consideration of whether Mendez’s conduct was a superseding cause, or even 6) adopting either of the above frameworks but granting the officers qualified immunity by finding  that the right at issue was not clearly established. It bears mentioning that the court has been very willing to summarily reverse in excessive force cases on qualified immunity grounds, but that it has not done so here.

Thus, while I cannot predict the outcome of this case, we must resist the urge to divide the court along ideological lines. There is simply more here than just another police shooting, and much more to the Ninth Circuit’s ruling than the “liberal overreach” of which it is often accused.

Hernandez v. Mesa: Come for the Mexican border shootings, stay for the drone warfare and cyber attacks.

The Supreme Court heard oral argument last week in Hernandez v. Mesa, a case about the constitutional rights of a Mexican teen, Sergio Hernandez, shot and killed by U.S. border patrol, while the officer stood in America and Hernandez stood just over the Mexican side of the border. There is no doubt that if Hernandez were American or shot on U.S. soil, then he would be afforded constitutional rights and could bring constitutional claims against the officer. But the fact that he was an alien, technically abroad, has led lower courts to find that Hernandez had no constitutional rights when shot, even if the force used was unwarranted, even though the officer stood on U.S. soil, and even though Hernandez stood just feet across the border. On the surface, this presents an interesting and important issue in and of itself. But what makes this case even more interesting are its ramifications extending well beyond just another shooting at the border. 

If the government ultimately wins this case, it will likely mean that the Supreme Court fears those ramifications more than it sympathizes with the family of the teen.


El Paso, Texas and Ciudad Juarez, Mexico straddle the Rio Grande river, and in areas where the river has run dry, a concrete channel, or culvert, separates the U.S. and Mexico. Through the center of the culvert runs an invisible border between the two countries. Sergio Hernandez, a 15 year old Mexican citizen, was playing in the culvert with a group of friends, taking turns touching the wall on the U.S. side and hurrying back to the Mexican side. One of the children was apprehended by a border patrol agent named Jesus Mesa. While the remaining boys fled to Mexico, Hernandez hid behind a pillar from an overpassing bridge, having physically crossed the invisible border back into Mexico. Agent Mesa then shot Sergio Hernandez in the face, killing him.  The two stood only 60 feet apart at the time. Video of the incident indicates that Hernandez does not appear to be posing any threat when shot and killed, and instead is merely peaking out from the pillar when shot.

Hernandez’s family sued the United States and Agent Mesa. After losing in the lower courts, the family petitioned for certiorari to the Supreme Court on two questions: 1) whether Hernandez’s 4th and 5th Amendment rights were violated, and 2) whether Mesa was entitled to qualified immunity, which provides liability to government officials if their conduct does not violate a “clearly established” constitutional right. In granting cert, the Supreme Court added a third question: whether Hernandez had a right to even sue in the first place, via what is called a Bivens action. Among the issues before the Supreme Court, whether the force used against Hernandez was justified is not one of them. Rather, even assuming that the shooting was unwarranted, does Hernandez have cognizable constitutional rights in the first place?


Among the pantheon of insufferable things said daily in 1L classes across our nation, “slippery slope” ranks pretty high up there. That and “ipso facto.” But this is a quintessential case where the slippery slope (Oh god, kill me) really does lead us to bigger problems than that with which we started.

Sure, when an agent fires a weapon from inside the U.S. and shoots an alien right at the border with no justification, we see inherent injustice in denying rights or remedies to the individual. But where do we draw the line?

What about when a U.S. sniper kills a drug cartel leader (or his innocent wife) 2,000 feet away?  Or when a drone operator in New York strikes the family of an al-Qaeda leader in Yemen?  Or, even more abstractly, when a member of U.S. Cyber Command remotely accesses and searches a family computer belonging to a suspected Russia-based hacker?

All of those issues involve U.S. government officers taking action against aliens abroad from within the United States, and yet in all of these situations we understand that the Constitution does not and should not apply. Clearly, if the Court were to issue a broad holding in this case, its application could go far beyond border shootings and implicate a litany of global national security concerns.

At oral argument, many of the Justices expressed their apprehension in ruling for the Hernandez family for this exact reason. Justice Kagan began questioning by asking what Hernandez’s proposed constitutional rule was. Chief Justice Roberts explicitly raised the specter of drones in Iraq being piloted from Nevada and appeared concerned that Hernandez’s proposed rule could not be “narrowly confined.” Even Justice Breyer, often cited as the most pragmatic Justice, pointedly questioned Hernandez’s counsel about how the Court’s holding in this case would be applied to other circumstances, and also echoed Chief Justice Roberts’ concerns about this case’s application to drone strikes. Critically, Justice Kennedy appeared to be quite hesitant to extend the right to bring suit against the federal government to aliens abroad. Later, however, during questioning of counsel for Agent Mesa, the four “liberal” members of the Court appeared to be sympathetic to Hernandez’s case and willing to ultimately draw a pragmatic line between this situation and the parade of horribles listed above.

Ultimately, like with many cases, the vote will likely come down to Justice Kennedy. In two prior cases involving the rights of aliens abroad, Boumediene v. Bush, 553 U.S. 723 (2008) and United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), Justice Kennedy appeared to take a practical approach to determining whether the Constitution applied. Boumediene asked whether prisoners in Guantanamo Bay could file a writ of habeas corpus to contest their indefinite detention. Justice Kennedy, writing for a 5-4 majority along with the Court’s “liberal” wing, found that practical considerations dictated that the Constitution applied, even though Guantanamo Bay technically was located in Cuba, not the United States. In Verdugo-Urquidez, a Mexican citizen facing trial in the U.S. claimed that his Fourth Amendment rights were violated when the U.S. government searched his properties located in Mexico. The Court ultimately ruled that he did not possess Fourth Amendment rights, with Justice Kennedy issuing a concurring opinion finding that it would be “impracticable and anomalous” to apply the Fourth Amendment in that situation. In both cases, Justice Kennedy endorsed practical tests to determine the constitutional rights of aliens abroad.


Who wins this case ultimately comes down to what the Justices really feel this case is about.  I see a handful of different scenarios unfolding.

a. Shutting Pandora’s Box

If the Court sees this case as opening the door to a wide range of constitutional attacks on U.S. conduct abroad, then it is very unlikely to find for Hernandez. The Supreme Court is typically loath to issue broad, sweeping opinions, for the exact reason that presents itself here. Supreme Court opinions go beyond just affirming or reversing the lower courts, and instead include a holding and a rationale which will be extensively reviewed and applied by lower courts in situations much different than the specific facts of this particular case. In the words of Justice Breyer at oral argument in this case, “[w]e write some words…. The problem is other people will read those words, and there are all kinds of things that happen…” This is the Supreme Court’s general concern in a nutshell, and it is exacerbated here. Unless a majority of the Court can forge a narrow consensus with a rule of limited applicability, then we can expect the Court to avoid finding for Hernandez. That the Court, on its own, added the question of whether Hernandez could even bring suit in the first place may signify that it wishes to give itself an “out” in order to avoid a big holding here. The Court could also simply split 4-4, in which case the government would win but the Court would not even issue an opinion; this would let the Court avoid ruling on these issues altogether.

b. Protecting Law Enforcement

Moreover, the Court could also see this as a qualified immunity case, which also would bode well for the government. This case involves qualified immunity in an excessive force setting, an area in which this Court has become increasing willing to enthusiastically expand in order to protect law enforcement officers. Qualified immunity protects government officials when their conduct did not violate a “clearly established” right. Many times in the last few years, the Court has reversed lower courts (often unanimously) when they have not sufficiently protected law enforcement officers in situations where the law was not conclusive regarding their conduct or the rights at issue. See, e.g., White v. Pauly, __ U.S. ___ (2017); Mullenix v. Luna, 577 U. S. ___, (2015); City and County of San Francisco v. Sheehan, 575 U.S. ___ (2015); Plumhoff v. Rickard, 572 U.S. ___ (2014).  Here, while the force used by Mesa was clearly established to be excessive, the constitutional rights of Hernandez – an alien abroad – are far from established. To find for Hernandez, the Court would seemingly need to find that qualified immunity hinges on whether the conduct of the officer was clearly established to be unlawful, not whether the right of the individual was clearly established. The Court may be extremely reluctant to issue such a holding, which would likely have the effect of narrowing the doctrine of qualified immunity. 

c. Punting Like Ray Guy

Alternatively, the Court could simply punt (and yes, I Googled “best punter” to come up with this heading). The government has math on its side, which the Supreme Court can use to avoid the hardest issues for now. Because the Hernandez family lost in the lower court, it needs five votes to win. Further, there are three issues before the Court, and the Hernandez family must win each one in order to win. If the Court rejects just one of these issues (or ties on any of them), then the government wins. The Court has a ton of outs here and could simply choose to leave this issue for another day with a full complement of nine justices. There are just many ways in which the Court might opt to avoid ruling on the big issues here, especially given the likelihood of a 4-4 split with no opinion being issued.

d. Sometimes a Cigar is Just a Cigar

Or, the Court might just handle this case at face value and rule accordingly, albeit with a limited holding that takes care to avoid other implications. This is an extraordinarily sympathetic case, involving an unarmed teen being unjustifiably shot at close range just over an invisible border. Further, the Hernandez’s family has argued that ruling for the government would implement an on/off switch for constitutional rights at the border, stripping Mexican citizens or their families of any civil remedies against the U.S. or its officers, who could then shoot Mexicans with impunity. As will be explained below, if Justice Kennedy lands on a limited holding with narrow applicability, then Hernandez has a great chance of winning.

e. Donald Trump

Similarly, this case could be about reining in Donald Trump’s aggressive stance on Mexico. The Court will be reluctant to issue Donald Trump and his self-described “deportation force” a blank check to incite violent confrontations at the border. The frequency of border shootings in the past decade was raised by Hernandez’ family in their briefs and was even raised in an amicus brief filed by the Mexican government in support of Hernandez. The Court’s cognizance of the president’s agenda and the possibility for unchecked aggression may lead it to limit future executive abuses by providing rights and remedies to Mexicans at the border.

f. Implementing a Practical Approach

Finally, this case may simply be Justice Kennedy’s opportunity to further implement a practical approach to the rights of aliens abroad. Justice Kennedy is the swing vote, and he has led the charge to center the constitutional inquiry for aliens abroad on practical considerations rather than bright line rules. If Justice Kennedy can determine a limiting principle separating this case from drone strikes and the like, then he may be very willing to issue an opinion conclusively adopting a practical standard for applying the Constitution for aliens abroad. 

Such an Opinion would presumably center on the “impracticable or anomalous” language adopted by Justice Kennedy in Verdugo-Urquidez. By using the particular facts of this case – the fact that the culvert is jointly maintained by both the U.S. and Mexico; that the incident took place entirely at the border, and an invisible border at that, and; that it simply would not be impracticable to apply the Fourth and Fifth Amendments in border shootings such as this one – the Court could carefully draw the line. As the petitioner argues in his reply brief, there is simply nothing “impracticable or anomalous about ensuring that border guards, in carrying out their law-enforcement duties on U.S. soil, adhere to uniform constraints on the use of deadly force.” The Court, if it applies Justice Kennedy’s framework, could easily adopt this reasoning.


I believe that the two most likely scenarios are either a 4-4 tie or a narrow win – in more ways than one – for Hernandez, but anything from 6-2 for Hernandez to 8-0 for the government seems to be within the realm of possibility. Ultimately, this case has potential as a judicial Rorschach test, with the justices each seeing the core of this case in their own way and ruling accordingly.