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(CN) A divided Supreme Court on Monday said the Fifth Circuit must ultimately decide whether the family of a Mexican teen shot dead by a U.S. border agent can sue the agent for damages.

The courts per curiam opinion vacates a previous ruling by an en banc Fifth Circuit and sends the case back to it for further proceedings.

The case stems from a shooting that occurred on June 7, 2010. Sergio Adrian Hernandez Guereca, a 15-year-old Mexican national, was with a group of friends in the cement culvert that separateEl Paso, Texas, from Ciudad Juarez, Mexico.

As recounted in the majority opinion, Hernandez and his friends were playing a game in which they ran up the embankment on the United States side, touched the fence, and then ran back down.

Border Patrol Agent Jesus Mesa, Jr., arrived on the scene by bicycle and detained one of Hernandezs friends on the U.S. side of the embankment.Hernandez ran across the culvert and stood by a pillar on the Mexican side. Mesa fired two shots across the border, one of which struck Hernandez in the face, killing him.

The Justice Department investigated the incident and declined to bring federal civil rights charges against Mesa, finding there was insufficient evidence that Mesa acted willfully and with the deliberate and specific intent to do something the law forbids.

It also held that because Hernandez was not on U.S. soil when he was shot, the department had no jurisdiction to bring charges against the agent.

Hernandezs parents sued Mesa for damages, claiming that he violated their sons rights under the Fourth and Fifth Amendments. They also said at the time of his death, their son was unarmed and in no way posed a threat to the officer.

A federal judge in the Western District of Texas granted Mesas motion to dismiss. A three-judge panel of the Fifth Circuit later affirmed that ruling in part and reversed it in part.

It held Hernandez lacked any Fourth Amendment rights under the circumstances, but that the shooting violated his Fifth Amendment rights. On rehearing en banc, the Fifth Circuit unanimously affirmed the district courts dismissal of the familys claims against the officer.

The en banc court held that the family failed to state a claim for a violation of the Fourth Amendment because Hernanadez was a Mexican citizen who had no significant voluntary connection to the United States and was on Mexican soil at the time he was shot.

In regard to the familys Fifth Amendment claim, theen banc court said it wassomewhat divided on the question of whether Agent Mesas conduct violated the Fifth Amendment, but was unanimous in concluding that Mesa was entitled to qualified immunity.

In their petition for a writ of certiorari, the family asked the Supreme Court to determine whether they could assert claims for damages underBivens v. Six Unknown Fed. Narcotics Agents, in which the high court recognized for the first time an implied right of action for damages against federal officers alleged to have violated a citizens constitutional rights.

They also asked the justices to determine whether the shooting violated their sons Fourth Amendment rights, and whether Mesa was entitled to qualified immunity on the claim that the shooting violated Hernandezs Fifth Amendment rights.

In sending the case back to the Fifth Circuit, the majority noted that a Bivens remedy is not available when there are special factors counselling hesitation in the absence of affirmative action by Congress, and that it recently clarified what constitutes a special factor counselling hesitation in the case Ziglar v. Abbasi.

The Court of Appeals here, of course, has not had the opportunity to consider how the reasoning and analysis in Abbasi may bear on this case. And the parties have not had the opportunity to brief and argue its significance. In these circumstances, it is appropriate for the Court of Appeals, rather than this Court, to address the Bivensquestion in the first instance, the opinion says.

With respect to petitioners Fourth Amendment claim, the en banc Court of Appeals found it unnecessary to address the Bivens question because it concluded that Hernandez lacked any Fourth Amendment rights under the circumstances, the opinion continues. This approach disposing of a Bivensclaim by resolving the constitutional question, while assuming the existence of a Bivens remedy is appropriate in many cases. This Court has taken that approach on occasion. The Fourth Amendment question in this case, however, is sensitive and may have consequences that are far-reaching.

It would be imprudent for this Court to resolve that issue when, in light of the intervening guidance provided in Abbasi, doing so may be unnecessary to resolve this particular case, the majority of justices say.

With respect to petitioners Fifth Amendment claim, the en banc Court of Appeals found it unnecessary to address the Bivens question because it held that Mesa was entitled to qualified immunity. In reaching that conclusion, the en banc Court of Appeals relied on the fact that Hernandez was an alien who had no significant voluntary connection to the United States.

It is undisputed, however, that Hernndezs nationality and the extent of his ties to the United States were unknown to Mesa at the time of the shooting. The en banc Court of Appeals therefore erred in granting qualified immunity based on those facts, the opinion says.

In a dissent, Justice Clarence Thomas said the facts of the case differ considerably from those at issue in Bivens and its progeny, most notably this case involves cross-border conduct , and those case did not. Thomas says he would decline to extend Bivens under the circumstances and would affirm the en banc Fifth Circuit decision on that basis.

In a separate dissent, which Justice Ruth Bader Ginsburg joined Justice Stephen Breyer says that when Mesa shot Hernandez from across the culvert, he did not know whether Hernandez was a U.S. citizen or a Mexican citizen. Further, he says, the agent has never asserted he knew on which side of the boundary his bullet would fall.

Breyer goes on to say that while the culvert is thought of as being the boundary line between the two countries, technically, because there are fences on either side of it, it may actually be thought of as no more than a border-related area and that the boundary is in essence an invisible line of which none of them is aware.

In light of these considerations and others, Breyer says there is more than enough reason for treating the entire culvert as having sufficient involvement with, and connection to, the United States to subject the culvert to Fourth Amendment protections.

I would consequently conclude that the Fourth Amendment applies, Breyer says.

Finally, I note that neither court below reached the question whether Bivens applies to this case, likely because Mesa did not move to dismiss on that basis. I would decide the Fourth Amendment question before us and remand the case for consideration of the Bivens and qualified immunity questions, he adds.

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Justices Say Fifth Circuit Must Decide Cross-Border Shooting Case - Courthouse News Service

ANALYSIS/OPINION:

Liberty is slowly dying in this nation. The battles where liberty dies are mostly not the headline grabbing stories, but instead small cuts that help reduce this nation to despotism.

One of the cornerstones of liberty in America is property rights. In other nations, past and present, the sovereign could take a citizens property and the citizen was simply out of luck. Our founding fathers so feared the power of the government to take private property that they included what is known as the takings clause in the Fifth Amendment.

The Fifth Amendment is one of the most expansive amendments to the United States Constitution and it includes the takings clause; which states, nor shall private property be taken for public use, without just compensation.

Recently, the committee of nine unelected lawyers known as the Supreme Court gutted the Fifth Amendment. The case was called Murr v. Wisconsin.

In the Murr case, a family in Wisconsin owned two lots. On one, they built a nice cabin and the other they left undeveloped. The family at some point planned to sell the second lot at a profit. While the Murr family waited and their lot appreciated to $400,000 estimated value, the State of Wisconsin changed the rules.

The Murr family wanted to sell the one lot and keep their cabin. But under the new rules, the only allowable buyer for the lot was the State of Wisconsin. And the State of Wisconsin told them even more good news. If they wanted to sell, they would have to sell both of their lots, and the State of Wisconsin, the only permitted buyer, would only pay them $40,000.

The Murr family was outraged and sued under the takings clause. The Murrs (correctly) contended that by changing the rules after the family had bought the land and reducing the value, the government had taken their property.

In an utterly horrible decision, the United States Supreme Court ruled 5-3 that what Wisconsin did was not a taking under the U.S. Constitution.

In 2005, the Supreme Court decided the case of Kelso v. City of New London. In that case, the City of New London sought to use eminent domain to take private property for not a government purpose but for to be sold to another private company.

The idea that a private company could use the government to force an unwilling seller to give up their property is repugnant to liberty. Now, thanks to the Supreme Court, states are now free to change the rules and deprive someone of the value of property.

The Supreme Court is accelerating the movement of Americans from being property owners to being serfs. Under serfdom, serfs were bound to the land and were responsible for the land, even though they never received any benefit from the land.

Surveys show that fewer millennials are interested in property ownership. Why should they be? With the latest ruling from the Supreme Court, property owners in this nation are only one step above being serfs. Why would anyone want to spend their wealth on property the government can take at whim.

America is on the road to serfdom and that road is paved with bad Supreme Court decisions.

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Supreme Court, Wisconsin hit property rights - Washington Times

MORRISON A hold put on proceedings in a wrongful death suit filed against a woman who hit and killed a motorcyclist more than 5 years ago is coming to an end.

Theresa Ruf, 47, is charged with reckless homicide and failure to reduce speed to avoid an accident in the June 5, 2012, death of Samuel L. Munz, 53, of rural Sterling. Ruf rear-ended Munz as he was waiting to make a left turn into his driveway.

Munzs family also sued Ruf on Aug. 15, 2012.

On March 12, 2013, Rufs attorney, James Pignatelli, argued that a stay should be granted because information that would be made public in the civil suit might incriminate her in her criminal case.

Ruf was granted an indefinite stay, meaning evidence involving her, including a deposition, could not be obtained by Jim Mertes, the familys attorney, until the court allowed it. The stay did not apply to any other discovery in the civil case.

On March 29, Mertes filed a motion to lift the stay. Among his arguments:

Ruf never asserted her Fifth Amendment rights when she was answering interrogatories in the criminal case, nor did she invoke when she answered the complaint in the civil suit. In fact, she admitted driving the SUV that struck Munz, that she had no insurance at the time, and that she had a drink at Kellys 2 hours before the crash.

Rufs waivers to date have dramatically reduced the extent to which she would be burdened by any further invocation of Fifth Amendment privilege, he wrote.

In terms of self-incrimination, it would be up to Ruf to decide if and what to say in either case it may be a difficult choice, but its still a choice; shes not being compelled to incriminate herself, and therefore lifting the stay would not violate her Fifth Amendment protection.

Illinois appellate courts routinely have denied requests for stays of civil proceedings when there is a related criminal case.

Perhaps Mertes most compelling argument, though:

At the time he filed his motion to lift the stay, Ruf had been granted 36 motions to continue the criminal case, causing a delay of nearly 5 years since the civil suit was filed. That timeline is unfairly affecting Munzs wife, Vicky, who relied on him for his income, is impairing the resolution of his estate, and is an unreasonable delay in the familys attempt to seek justice, shifting the balance from Rufs right not to self-incriminate to the familys right to seek redress, Mertes argued.

Whiteside County Judge Stanley Steines agreed, and on June 5 5 years to the day since the crash ordered that the stay be lifted, either 30 days after the conclusion of the criminal case, or on Sept. 1, whichever comes first.

The trial in the criminal case is scheduled for July 18, but that date may change. Ruf has a pretrial conference Wednesday.

In addition, Sauk Valley Medias request to be allowed to photograph and to use electronic devices to report the proceedings in Rufs criminal case was granted, with one restriction.

On May 8, Pignatelli filed an objection to SVMs request, in which he cited his clients unspecified medical condition and said allowing news cameras would substantially impair her ability to defend herself.

He later modified his objection, asking that video cameras only not be allowed at the hearings. The judge agreed to the terms on June 8.

Under a program launched 5 years ago by the Illinois Supreme Court, enhanced, or extended, media coverage is allowed at those hearings and trials that are open to the public.

Among other things, media are allowed to use a limited number of still and video cameras, audio equipment and cellphones from which reporters can tweet or text developments, to broaden coverage of proceedings. Pooling the information with other media that request it is a main requirement.

Shooting images of jurors and recording discussions between attorneys and their clients, opposing attorneys, or sidebars with the judge, are prohibited.

While the presumption is such access should be granted, witnesses or attorneys and their clients can object to the extended coverage.

It is up to the presiding judge to decide whether the basis for the objections has merit, either by ruling on submitted, written arguments or by holding hearings and listening to testimony, or both.

Judges are given wide latitude in determining whether to restrict extended coverage.

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Whiteside County judge lifts stay in wrongful death suit - SaukValley.com

Texas' 'sanctuary cities' bill heads to court

Sebastian Robertson, WFAA 10:11 PM. CDT June 24, 2017

Protesters opposed to Senate Bill 4, the "sanctuary cities" bill, turn out in force for the last day of the session, on May 29, 2017. (Erika Rich for The Texas Tribune)

DALLAS -- During a Facebook live in early May, Texas Governor Greg Abbott signedSB4into law.

"Texas has now banned 'sanctuary cities' in the Lone Star State." said Abbott.

Set to take effect in September,SB4, commonly known as the "sanctuary city law" requires police to ask about a person's immigration status when they are legally detained or arrested and threatens to prosecute law enforcement officials that don't cooperate.

"Our Latino brothers and sisters are not criminals and our local police officers have more important things to do than acting as immigration agents," said Dallas Mayor Mike Rawlings earlier this month.

Monday a Federal District Court in San Antonio will consider blocking the law. Opponents have called the law unconstitutional and say it will disproportionately impact the Latino community.

While many cities have filed suits attempting to block the passage of this law many leaders are preparing for its passage.

Saturday afternoon, nearly one thousand Latino leaders gathered for a full weekend of meetings as they work on a plan of action should SB4 go into effect. The meetings were organized by the National Association of Latino Elected and Appointed Officials.

A portion of Saturday's meeting touched on how immigrants should interact with police.

"Basically it's to get them to know the rights and responsibilities of living in the United States but also for them to know the rights of the constitution under the fourth and fifth amendment so that if they are detained by a police officer or any law enforcement they know how to act and how to cooperate," Immigration Lawyer Douglas Interiano.

Those hoping to stop the bill before it gets teeth will have their work cut out for them.

US Attorney General Jeff Sessions released the following statement Friday:

The Department of Justice fully supports Texass effort and is participating in this lawsuit because of the strong federal interest in facilitating the state and local cooperation that is critical in enforcing our nations immigration laws.

2017 WFAA-TV

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Leaders consider next move before 'sanctuary cities' law goes into effect - WFAA

The Supreme Courthas ruled on an important test first posed by Justice William Brennan nearly 40 years ago about property rights, as Justice Anthony Kennedy sided with the Court's four liberal Justices on Friday.

In 1978, Brennan wrote for a 6-3 majority in the Penn Central v. New York City case that redefined property rights under the Fifth Amendments Takings Clause and also served as a foundation for historic preservation programs at a local level.

The current case in front of the Court, Murr v. Wisconsin, didn't involve a glamorous property such as Grand Central Station, the subject of Brennans opinion. Instead, the dispute was about a vacant vacation property, and if the parcel was part of a combined lot, or a parcel on its own.

On Friday, the majority 5-3 opinion written by Kennedy sided with the state of Wisconsin in the dispute, saying the test devised by Brennan was properly applied by the state, but that the courts also needed to include more than just Brennan's test in deciding similar disputes.

"The governmental action was a reasonable land-use regulation, enacted as part of a coordinated federal, state, and local effort to preserve the river and surrounding land," Kennedy said. "Like the ultimate question whether a regulation has gone too far, the question of the proper parcel in regulatory takings cases cannot be solved by any simple test. ...Courts must instead define the parcel in a manner that reflects reasonable expectations about the property."

Chief Justice John Roberts wrote the dissent. "State law defines the boundaries of distinct parcels of land, and those boundaries should determine the 'private property' at issue in regulatory takings cases. Whether a regulation effects a taking of that property is a separate question, one in which common ownership of adjacent property may be taken into account," he said.

The Murr family has owned two riverfront lots since the 1960s; one of the lots contained a vacation cottage; the other lot wasnt developed. One lot was in the parents name while the other was in the name of a company owned by the family. The two lots were jointly conveyed to four of their children in 1994 and 1995.

In 2004, when the children began to explore selling the empty lot to pay for improvements in the cottage, they found out that a zoning law established in 1975 barred the children from selling the empty lot separate from the cottage because two adjoining lots were now owned by one entity. The zoning law also prohibited the development of the empty lot because it didnt meet minimum size requirements for an independent lot.

The dispute in front of the Supreme Court involved a concept called a parcel as a whole. In 1978, Brennan fashioned that test as part of the Penn Central decision.

A New York City commission prohibited the Penn Central Railroad from redeveloping Grand Central Station after two plans substantially changed the buildings historic look above the building. Penn Central sued, claiming it should receive full compensation for the air rights about Grand Central Station.

Brennan and the majority disagreed, saying the commissions decision wasnt a taking under the Fifth Amendment and that the railroad still could derive a reasonable economic return from the buildings use. The decision established a four-part test to determine if a property holder should receive just compensation under the Fifth Amendment if a government policy or action results in a taking of their property.

One of the four parts was called the parcel of a whole. Brennan said that this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a wholehere, the city tax block designated as the landmark site. In that context, the Court said the Grand Central building and the air space above it was one property in terms of the Fifth Amendments Takings Clause.

The Murr familys lawyerscited another landmark Supreme Court decision, Lucas v. South Carolina Coastal Council (1992), to support their claim that they should be able to sell the property or seek compensation from the government.

The Lucas decision said that the denial of all economic use of a property by a government regulation was a taking under the Fifth Amendment and required just compensation. The Wisconsin government has argued that the properties should be considered as a whole in the takings analysis, citing the Penn Central decision. The state appeals court ruled against the Murr family and the family filed an appeal with the Supreme Court, which was accepted in January 2016.

Scott Bomboy is the editor in chief of the National Constitution Center.

Filed Under: Fifth Amendment, Supreme Court

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Supreme Court decides Takings Clause case as term winds down - Constitution Daily (blog)