St. Mary's Law Journal


Since 2010, there have been forty-three cases—and ten deaths—involving the use of deadly force by United States agents against Mexican nationals along the border. Currently, the official policy is that officers may still use deadly force where they “reasonably believe”—based upon the totality of the circumstances—that they are in “imminent danger” of death or serious injury. Officers were found reasonable in using deadly force in situations as mundane as young boys throwing rocks. In light of these actions, the Mexican government has raised serious concerns about the disproportionate use of force by United States agents. The question now raised is how far the Constitution extends extraterritorially and whether the ruling in Boumediene v. Bush means that certain fundamental rights extend past our borders. This is particularly relevant when the state action takes place within our borders, yet the effects occur outside of United States sovereign territory. The United States has a duty under international law to provide for an effective remedy in determining whether or not the agent’s actions were lawful or justified and whether the actions were an arbitrary deprivation of life. If this matter is not allowed to proceed before a court, it will set a dangerous precedent. For example, so long as the individual dies across the border, even where the shooting may have been unlawful, there will be a lack of transparency and accountability. The government should not be allowed to switch the Constitution and Bill of Rights on and off when it is convenient; to allow this is to destroy the benefit of a written Constitution and allow the government to act with impunity. This is the very thing the Constitution was designed to prevent.


St. Mary's University School of Law