This article originally was published in The Middle Ground, the official publication of the Federal Bar Association’s Middle District of North Carolina Chapter. Womble Carlyle attorney Jamie Dean serves as Editor of the newsletter.

In some form or fashion, law students learn that the words “reasonable man” denote a person exercising those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interests and the interests of others.i Sometimes this person (a hypothetical reasonable man) is called a reasonable man of ordinary prudence, or an ordinarily prudent man, or a man of average prudence, or a man of reasonable sense exercising ordinary care. The actor is required to do what this ideal individual would do in his place. The reasonable man is a fictitious person who is never negligent and whose conduct is always up to standard. The concept of the reasonable person appears many times over in civil rights case law. Objective reasonableness in the context of civil rights law under 42 U.S.C. § 1983ii means that a governmental official will not be immune from suit if, on an objective basis, it is obvious that no reasonably competent official would have concluded that the action was lawful. The Supreme Court of the United States recently added Hernandez v. Mesa, a case involving the issues of objective reasonableness and qualified immunity, to its oral argument calendar for the current term.

QUALIFIED IMMUNITY

Qualified immunity is available as an affirmative defense and places a limitation on liability under section 1983. The immunity is a judge-made doctrine that aims to balance “the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”iii Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.iv A right is clearly established only where “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”v The Supreme Court of the United States has explained that reliance on the objective reasonableness of an official’s conduct, as measured by reference to clearly established law should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment.vi Thus, qualified immunity shields the reasonable person—in this case, a government official performing a discretionary function.

In Saucier v. Katz, the Supreme Court mandated a two-step sequence for resolving government officials’ qualified immunity claims.vii The court must decide whether the facts as alleged make out a violation of a constitutional right. In some cases, the ruling on this first question may end the legal inquiry, for “[i]f no constitutional right would have been violated were the [factual] allegations established, there is no necessity for further inquiries concerning qualified immunity.”viii If the aggrieved party satisfies the first question, the court must decide whether the right at issue was “clearly established [such] that the officer’s conduct was unlawful in the circumstances of this case” at the time of the defendant’s alleged misconduct.ix In other words, qualified immunity is applicable unless the official’s conduct violated a clearly established constitutional right.x In Pearson v. Callahan, the Supreme Court further held that following the two-step test under Saucier in sequence would no longer be mandatory and that courts should “be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the case at hand.”xi

THE CASE OF HERNANDEZ V. MESA

In Hernandez, the Supreme Court will consider whether, as the Petitioners frame the issue, a U.S. Border Patrol agent is entitled to qualified immunity because he did not know at the time of the shooting that the victim was not a U.S. citizen. One of the issues at stake in Hernandez begs the question: how can a government official establish that he acted reasonably and justify his actions in light of facts that he did not know at the time he acted?

Hernandez arises out of the 2010 shooting of Sergio Hernandez, a fifteen-year-old boy who was killed by a U.S. Border Patrol agent, Jesus Mesa, as Hernandez played in a culvert separating the United States-Mexico border.xii Hernandez and his friends were playing a game in which they would touch the barbed-wire fence between the United States and Mexico and then run back towards the tunnel.xiii Agent Mesa detained one of the boys.xiv After Hernandez retreated to the Mexican side of the border, Agent Mesa discharged his firearm across the border twice, fatally hitting Hernandez at least once in the face.xv Additional U.S. Border Patrol agents arrived on the scene, but none of them rendered any aid to Hernandez.xvi

The ensuing lawsuit against Agent Mesa alleged that his conduct violated the Fourth Amendment’s bar against excessive deadly force. The lower court ruled that the Fourth Amendment’s protections did not extend to Hernandez because he was a Mexican citizen who lacked significant voluntary connections to the United States and was on Mexican soil when he was shot. The Fifth Circuit took up the case on appeal by Hernandez’s family and held that the Fifth, rather than the Fourth Amendment applied.xvii After concluding that the family had stated a claim for a Fifth Amendment violation, the court added that, on the facts alleged, Agent Mesa had not acted reasonably:

if ever a case could be said to present an official abuse of power so arbitrary as to shock the conscience, the Appellants have alleged it here. According to the Appellants’ complaint, Hernandez had retreated behind the pillars of a bridge when, unprovoked, Agent Mesa fired two gunshots in his direction. One of the gunshots struck him in the face and killed him. On these facts, Agent Mesa had no reason to suspect that Hernandez had committed any crime or engaged in any conduct that would justify the use of any, let alone deadly, force. With no apparent justification for this action, a reasonable trier of fact could conclude that Agent Mesa “acted out of conscience-shocking malice or wantonness rather than merely careless or excessive zeal.”xviii

When it came to the second prong of the qualified immunity analysis, the Fifth Circuit held that, “no reasonable officer would have understood Agent Mesa’s alleged conduct to be lawful” because of its “obvious wrongness.”xix More pointedly, the court rejected Agent Mesa’s argument that his alleged conduct would have been lawful if it occurred outside U.S. borders by responding that, “[it was] not a reasonable misapprehension of the law entitled to immunity. It does not take a court ruling for an official to know that no concept of reasonableness could justify the unprovoked shooting of another person.”xx

When the Fifth Circuit decided to rehear the matter en banc, it agreed that the panel opinion correctly found a Fifth Amendment violation, but found that the right was not clearly established at the time of the shooting and that “no case law in 2010 ... reasonably warned Agent Mesa that his conduct violated the Fifth Amendment.”xxi The en banc Fifth Circuit opinion underscored an important point about the qualified immunity analysis: government officials cannot reasonably be expected to be aware of constitutional rights that have not yet been declared.

Had Hernandez been a United States citizen, or a person with significant voluntary connections to the United States, or on United States soil at the time he was shot, protections under the United States Constitution would have attached and Agent Mesa would not have been granted qualified immunity on the facts as alleged. However, Agent Mesa did not know that Hernandez was a Mexican national at the time he was shot. When the Supreme Court hears the issue, it may consider whether qualified immunity can be granted or denied based on a government official’s after-the-fact discovery of information relevant to the reasonableness analysis.

REASONABLENESS IN LIGHT OF AFTER-THE-FACT DISCOVERIES

Can government officials justify their actions retroactively based on facts unknown to them at the time of their alleged misconduct? The Ninth Circuit has answered in the negative.

The Ninth Circuit’s decision in Moreno v. Baca involved the search and seizure of a parolee without reasonable suspicion.xxii Although Moreno’s status as a parolee could have arguably made the search and seizure constitutional because parolees have diminished Fourth Amendment rights, the officers did not learn that he was on parole until “after searching and detaining him.”xxiii Nonetheless, the officers argued that they were entitled to qualified immunity even if their search violated the Fourth Amendment because “it was not clearly established that Moreno had any right to be free from suspicionless searches because of his parole status.”xxiv

The Ninth Circuit rejected that argument and denied qualified immunity.xxv Had the officers “known of the parole condition at the time of the search and seizure,” the court explained, they might have been entitled to qualified immunity.xxvi But “[b]ecause the Deputies did not know of Moreno’s parole status” when “they searched and seized him,” the Ninth Circuit held that this later-discovered fact “cannot justify their conduct.”xxvii “At the time of the incident,” the court elaborated, “it was clearly established that the facts upon which the reasonableness of a search or seizure depends, whether it be an outstanding arrest warrant, a parole condition, or any other fact, must be known to the officer at the time the search or seizure is conducted.”xxviii To receive qualified immunity in the Ninth Circuit, an officer “must be aware” of the key facts “before” committing the disputed act.xxix In other words, government officials cannot establish the reasonableness of their actions using information not known to them at the time they took the alleged actions.

Analyzing facts strikingly similar to those of Hernandez, the U.S. District Court for the District of Arizona squarely held in Rodriguez v. Swartz that a governmental official may not assert qualified immunity on an after-the-fact discovery that the individual he shot was not a United States citizen.xxx Considering legal arguments nearly identical to those advanced in Hernandez, the Rodriguez court concluded that a Mexican national fatally shot in Mexico by a border patrol agent standing on United States soil was entitled to Fourth Amendment protections.xxxi On the question of whether the Fourth Amendment right at issue was clearly established at the time of the shooting, the court seemingly agreed with the Fifth Circuit’s conclusion following the first Hernandez appeal: “it does not take a court ruling for an official to know that no concept of reasonableness could justify the unprovoked shooting of another person.”xxxii

CONCLUSION

Among the other issues to be decided by the Supreme Court when it considers Hernandez v. Mesa, the qualified immunity issue may turn on how the Court chooses to frame it. The Fifth Circuit framed the issue as “whether the general prohibition of excessive force applies where a person injured by a U.S. official standing on U.S. soil is an alien who had no significant voluntary connection to, and was not in, the United States when the incident occurred.”xxxiii Framed that way, the Supreme Court may find that Hernandez was not entitled to any of the protections of the United States Constitution.

On nearly the same facts and legal issues as Hernandez, the Rodriguez court considered the issue to be whether an agent may assert qualified immunity on an after-the-fact discovery that the individual he shot was not a United States citizen.xxxiv The common sense approach would be that government officials cannot establish the reasonableness of their actions using information not known to them at the time they took the alleged actions.

Whether we think of the government actor performing discretionary functions as a reasonable official of ordinary prudence, or an ordinarily prudent official, or an official of average prudence, or an official of reasonable sense exercising ordinary care, one thing is clear: he or she should act based on all of the information available at the time the action is taken. In other words, be reasonable.