The NCSL Blog


By Lisa Soronen

It is rare for the U.S. Supreme Court to rule that a lower court improperly granted a police officer qualified immunity. It is perhaps even rarer for the Supreme Court to clarify its tried and true qualified immunity standard.

A U.S. border patrol agent looks over the Rio Grande at the border between the United States and Mexico, in Roma, Texas. The Supreme Court ruled on Monday that a U.S. border patrol officer accused of shooting a 15-year-old Mexican on Mexican soil has to stand trial. Carlos Barria/Reuters In Hernandez v. Mesa, the Supreme Court ruled that the lower court erred in granting qualified immunity to a police officer based on facts unknown at the time of the shooting, but favorable to the officer.

More generally, it clarified that the facts learned after an incident are not relevant to granting or denying qualified immunity.

State and local government officials can be sued for money damages in their individual capacity if they violate a person’s constitutional rights. Qualified immunity protects government officials from such lawsuits where the law they violated isn’t “clearly established.”

U.S. Border Patrol Agent Jesus Mesa Jr. shot and killed Sergio Adrian Hernandez Guereca, a 15-year-old Mexican national, who was standing on the Mexico side of the U.S./Mexico border.

At the time of the shooting, Mesa didn’t know that Hernandez was a Mexican citizen. Hernandez’s family argued, among other things, that Mesa violated their son’s Fifth Amendment due process rights. 

The 5th U.S. Circuit Court of Appeals granted Mesa qualified immunity, relying on the fact that Hernandez was “an alien who had no significant voluntary connection to . . . the United States.” But Mesa didn’t know Hernandez’s nationality and the extent of his ties to the U.S. at the time of the shooting.

In a per curiam (unauthored) opinion, the court noted that “[f]acts an officer learns after the incident ends—whether those facts would support granting immunity or denying it—are not relevant” to the qualified immunity analysis.

This conclusion is unsurprising and a mixed bag for states and local governments.

Given the rapid pace of police work, it is not unusual for officers to learn a variety of information after they have used force, which supports their qualified immunity claim (e.g. the person they shot had a gun, had threatened another officer or citizen, etc.). Considering this kind of after-the-fact information in the qualified immunity analysis would be favorable to officers.

But in some cases officers may learn after-the-fact information that undermines their claim for qualified immunity (e.g. the person they shot stated he had a weapon but did not, had been mistakenly perceived to have threatened another officer or citizen, etc.). Considering this kind of after-the-fact information in the qualified immunity analysis would be unfavorable to officers.

The 5th Circuit may still ultimately grant Mesa qualified immunity. On remand, the 5th Circuit can consider whether Mesa is entitled to qualified immunity because the law isn’t clearly established that he violated Hernandez’s Fifth Amendment rights when he was uncertain of Hernandez’s nationality and ties to the U.S. at the time of the shooting. 

Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog on judicial issues.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.