Category Archives: Fifth Amendment

The Teamster chief whose members are charged with extorting a reality TV show in a case linked to City Hall will plead the Fifth if called to testify when the trial of four of his members begins later this month, a federal court filing states.

Martin G. Weinberg, attorney for Teamsters Local 25 president Sean M. OBrien, declined to comment yesterday on the disclosure made Friday by lawyers for John Fidler, Daniel Redmond, Robert Cafarelli and Michael Ross.

The issue is premature, Weinberg told the Herald. It may well be a non-issue since neither side has subpoenaed Mr. OBrien. Besides, the U.S. Supreme Court has made absolutely clear that the Fifth Amendment is the refuge of the innocent, not just the guilty.

The Top Chef trial remains slated to begin July 31 in U.S. District Court.

To date, OBriens name has not surfaced among only a handful of witnesses to be publicly identified beyond mere initials. The list does include the Emmy-nominated Bravo cooking shows host Padma Lakshmi, an international model, actress and author.

Fidler, Redmond, Cafarelli and Ross each face up to 20 years in federal prison if convicted of extortion charges alleging they physically and verbally threatened the cast and crew of a June 2014 Boston-area shoot, with one allegedly telling Lakshmi, Ill smash your pretty face, if they refused to hire Local 25 drivers.

In a December 2015 appearance on Herald Radios Morning Meeting, Mayor Martin J. Walsh, onetime head of the Boston Building Trades Council, acknowledged having personally called OBrien at the time, but would not discuss their conversation. Walsh made a guest appearance on Top Chef, causing his former chief of operations Joe Rull to raise concerns about political fallout from his pro-labor boss involvement with a nonunion TV show.

Walsh spokeswoman Laura Oggeri declined comment yesterday.

No one in Walshs administration has been accused of any criminal wrongdoing. Fridays defense motion seeks to strike evidence from the trial of extensive phone and email conversations between various employees of the Mayors office and others regarding Top Chef, including OBrien. The defense argues the conversations are irrelevant because they dont involve the defendants, but rather broader policy issues such as tax credits, labor relations, and political decision-making.

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Teamster chief plans to plead Fifth if called - Boston Herald

Waymos dropping of three patent claims against Uber weakens its original argument for bringing the suit. Still, each side called the latest legal move a victory.

Waymo said it agreed to scale back its patent claims because Uber had halted work on a lidar design that violated Waymos patents and is proceeding with a different design. Waymo is permitted to reassert its claims if Uber returns to the design that Waymo challenged. The company said Ubers current lidar design still violates one of its original patents.

We continue to pursue a patent claim against Ubers current generation device and our trade secret claims, which are not at all affected by this stipulated dismissal, Waymo said in a statement. We look forward to trial.

In a statement, Uber said the dropping of the three claims was yet another sign of Waymo overreaching and not delivering on its claims.

Last month, Waymo received a signal from federal court that the patent claims were not its strongest legal argument in the case. Judge William Alsup of Federal District Court in San Francisco, who is overseeing the case, urged the companys lawyers at a hearing on June 7 to drop the patent claims because youre going to lose on all these patent claims unless you pull some rabbit out of a hat.

Lately, Uber has been trying to distance itself from the actions of Mr. Levandowski, the former head of Googles driverless car project who joined Uber last year.

Waymo has said that Mr. Levandowski worked with Uber to steal proprietary information from Google before joining Uber. Waymo said Uber was aware that Mr. Levandowski had stolen files from Waymo.

Uber said it expressly told Mr. Levandowski to not bring any stolen documents to the company or apply any of Waymos intellectual property to Ubers autonomous vehicle efforts. The company said Waymos lawyers have not found the stolen documents in Ubers possession, despite extensive discovery.

The matter has been complicated by Mr. Levandowskis assertion of his Fifth Amendment right to avoid self-incrimination. Uber said it had urged him to cooperate with Waymos lawyers and fired him when he continued to refuse.

In a separate filing on Friday, Uber said Mr. Levandowski, before invoking his Fifth Amendment right, told Travis Kalanick, then Ubers chief executive, that he had downloaded the documents from Google because he was worried that he might not receive full payment of a $120 million bonus owed to him. Uber said this indicated that his actions were unrelated to his work at Uber.

A Waymo spokesman called Ubers claim fictitious and an attempt to distract from evidence showing that Mr. Levandowski met with Uber executives within 24 hours of downloading proprietary Google information.

A version of this article appears in print on July 8, 2017, on Page B5 of the New York edition with the headline: Waymo Drops 3 Claims in Suit Against Uber on Driverless Cars.

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Waymo Scales Back Claims Against Uber in Driverless Car Dispute - New York Times

Photo: BRETT CARLSEN, NYT

Waymo dropped several patent claims against Uber on Friday, but the two companies are still involved in a bitter lawsuit.

Waymo dropped several patent claims against Uber on Friday, but the two companies are still involved in a bitter lawsuit.

Waymo scales back claims against Uber in driverless car dispute

Waymo, the autonomous vehicle business that operates under Googles parent company, dropped several patent claims against Uber on Friday, pulling back some of its major allegations in a bitter lawsuit over driverless technology.

In a federal court filing, Waymo said it was dropping three of its four claims over Uber violating its patents related to light detection and ranging sensor technology, or lidar. Lidar is a vital component in driverless car technology, helping the vehicle detect its surroundings to navigate roads.

The case, an acrimonious battle between Waymo and Uber, spotlights the arms race surrounding autonomous vehicle talent and technology. It is especially significant for the Google unit now Waymo that spent years working on driverless car technology before other tech companies took an interest. But as Waymo searches for a way to make money from self-driving cars, many of its best engineers have left for potential competitors, carrying valuable knowledge of its technology with them.

The case with Uber, the ride-hailing company, began when Waymo filed suit in February, claiming Uber was using intellectual property stolen by one of Googles former project leaders in its driverless vehicles. That set off months of wrangling, eventually leading Uber to fire the former Google project leader, Anthony Levandowski. The case is scheduled for trial in October, with the thrust of it centered on Uber misappropriating Waymos trade secrets.

Waymos dropping of three patent claims against Uber weakens its original argument for bringing the suit. Still, each side called the latest legal move a victory.

Waymo said it agreed to scale back its patent claims because Uber had halted work on a lidar design that violated Waymos patents and is proceeding with a different design. Waymo is permitted to reassert its claims if Uber returns to the design that Waymo challenged. The company said Ubers current lidar design still violates one of its original patents.

We continue to pursue a patent claim against Ubers current generation device and our trade secret claims, which are not at all affected by this stipulated dismissal, Waymo said. We look forward to trial.

Uber said the dropping of the three claims was yet another sign of Waymo overreaching and not delivering on its claims.

Last month, Waymo received a signal from federal court that the patent claims were not its strongest legal argument in the case. Judge William Alsup of U.S. District Court in San Francisco, who is overseeing the case, urged the companys lawyers at a hearing June 7 to drop the patent claims because youre going to lose on all these patent claims unless you pull some rabbit out of a hat.

Uber, meanwhile, has been trying to distance itself from the actions of Levandowski, who joined Uber last year.

Waymo has said that Levandowski worked with Uber to steal proprietary information from Google before joining Uber. Waymo said Uber was aware that Levandowski had stolen files.

Uber said it expressly told Levandowski not to bring any stolen documents to the company or apply any of Waymos intellectual property to Ubers autonomous vehicle efforts. The company said Waymos lawyers have not found the stolen documents in Ubers possession, despite extensive discovery.

The matter has been complicated by Levandowski asserting his Fifth Amendment right to avoid self-incrimination. Uber said it urged him to cooperate with Waymos lawyers and fired him when he continued to refuse.

In a separate filing Friday, Uber said Levandowski, before invoking his Fifth Amendment right, told Travis Kalanick, then Ubers CEO, that he had downloaded the documents from Google because he was worried that he might not receive full payment of a $120 million bonus owed to him. Uber said this indicated that his actions were unrelated to his work at Uber.

Daisuke Wakabayashi is a New York Times writer.

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Waymo scales back claims against Uber in driverless car dispute - SFGate

Two new Supreme Court decisions illustrate the point: Even conservative litigants should argue their cases so as to genuflect before the legal elites progressive faith.

Courts are supposed to apply the law neutrally. When construing the Constitution, this means they should apply the original, actual meaning of the document. Yet the Supreme Court often decides cases in ways divorced from that meaning. So it is easier to win your case if your argument accords with the social and cultural values favored among the contemporary elite.

Both Murr v. Wisconsin and Trinity Lutheran Church v. Comer are further illustrations. The Murrs contended that state-authorized zoning regulations had deprived them of property rights without the compensation required by the Fifth Amendment. Trinity Lutheran Church claimed the state had denied the church access to a grant program in violation of the First Amendment.

If the Supreme Court had applied the Constitutions original meaning, both the Murrs and Trinity Church would have lost. Contrary to common illusion, the Constitutions original meaning does not always mandate results conservatives (or liberals) like.

Yet the court (Justice Clarence Thomas excepted) pretty much ignored the original meaning. It ruled for the state in Murr but against the state in Trinity Lutheran.

One reason the Murrs lost is they made a legal blunder by kicking away a grandfather clause that would have protected them. One reason Trinity Lutheran Church won was that it was seeking a government grant for the childrenthat is, to provide a softer surface for a playground.

But if you are considering which cases to bring before the Supreme Court and how to argue them, you cant overlook this: Attorneys for the church played to the legal elites progressive valuesand won. In fact, they won 7-2, carrying with them two of the most liberal justices. The Murrs, on the other hand, defied those values. They lost, 5-3, with even the three more conservative dissenters agreeing with the result.

The Murrs were in a position any progressive would find unsympathetic. They were private landowners (bad). Their land was in an area the state and federal governments deemed environmentally sensitive (worse). They had the cheek to challenge an ordinance that allegedly protected the environment (inexcusable). Their goal was to develop or sell for profit. (Enough said.)

Compare the facts and presentation of Trinity Lutheran:

Observe how many of the lefts ideological buttons the plaintiffs lawyers pushed: non-profit, recycling, mandatory government fee, poverty, disabilities, environmentand that interminably-overused mantra: community.

The lesson: Whatever your personal beliefs, if you are taking a case to Washington, D.C., it helps to ensure that your case does not floutand preferably panders tothe ideology prevalent there.

Rob Natelson is a retired constitutionallaw professor and a senior fellow in constitutional jurisprudenceat Colorado'sIndependence Institute;the Illinois-based Heartland Institute; and the Montana Policy Institute. He is the author of The Original Constitution: What It Actually Said and Meant.

The views expressed by contributors are their own and are not the views of The Hill.

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The Supreme Court's bias for 'progressive' plaintiffs - The Hill (blog)

Former national security adviser Lt. Gen. Michael Flynn, through his lawyers, today invoked the Fifth Amendment right against self-incrimination and refused to hand over documents subpoenaed by a Senate committee.

The Senate Intelligence Committee subpoenaed Flynn's personal documents on May 10, after he declined to cooperate with its April 28 request in relation to the panel's investigation into Russian interference in the 2016 election and possible ties to Trump campaign associates. Before the April request, Flynn said through a statement from his lawyer that he wouldn't submit himself to questioning from the committee "without assurances against unfair prosecution."

The Fifth Amendment gives criminal defendants the right to refuse to testify at trial. No person shall be compelled in any criminal case to be a witness against himself, according to the U.S. Constitution.

Although a congressional investigation is not a criminal matter, Flynn would still have the right to invoke the Fifth Amendment with regard to certain questions that could potentially incriminate him in a future criminal case. But he does not have the right to refuse to testify before Congress altogether.

As a general matter, the Fifth Amendment applies only to testimony and does not give criminal defendants or witnesses in congressional investigations the right to refuse to turn over subpoenaed documents. But there is an exception when the act of producing a document is itself incriminating.

The fact that the content of the documents are incriminating does not give you a Fifth Amendment right not to produce them, explained Michael Seidman, a criminal law professor at the Georgetown University Law Center. But the mere act of producing them can be incriminating if the government doesnt know that they exist or that you have them.

If the government already knows that certain documents exist, it could turn into a complicated legal question about whether Flynn must release them, said Seidman.

In a letter to Sens. Richard Burr, R-North Carolina, and Mark Warner, D-Virginia, and the Senates Select Committee on Intelligence dated May 22 obtained by ABC News, Flynns lawyers argued that [p]roducing documents that fall within the subpoenas broad scope would be a testimonial act, insofar as it would confirm or deny the existence of such documents.

The context in which the Committee has called for General Flynns testimonial production of documents makes clear that he has more than a reasonable apprehension that any testimony he provides could be used against him, the letter reads.

Seidman said this is a standard legal strategy and that any competent lawyer would tell Flynn that if he might have a Fifth Amendment privilege he should assert it. Also, if he produces documents and makes statements, he risks inadvertently waiving his rights against self-incrimination as the Russia investigation progresses, Seidman said.

Legal experts also pointed out that if Flynn is granted immunity from criminal prosecution, then he would no longer have Fifth Amendment rights against self-incrimination and could be compelled to answer all questions and release all documents.

In the same way that immunizing a low- or mid-level person in a crime ring can lead to fingers pointed all the way up to the Don, said Akhil Amar, a constitutional law professor at Yale Law School, who said the Don pun was intentional.

Members of the Senate Intelligence Committee said today that they would use all available tools to get information from Flynn, including holding him in contempt of Congress, which could open him up to criminal charges.

We're going to keep all the options on the table, Warner told ABC News.

We're going to help honor the constitutional rights but we still have to be able to get to the facts. We can't just step back and say, Oh, OK we can't get it, added Sen. James Lankford, R-Oklahoma, another member of the Senate Intelligence Committee.

Lankford also suggested that the committee will still try to negotiate with Flynns lawyers to get access to the information he is currently refusing to share.

Warner added that there might be a legal gray area that prohibits Flynn from using the Fifth Amendment to protect his refusal to provide documents, versus his clear constitutional right against testimony that might incriminate him.

We know there's a Fifth Amendment right on testimony but I think there's an open question on documents and we're looking into that right now, he said.

ABC News' Ali Rogin and Mary Bruce contributed to this report.

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What you need to know about the 5th Amendment and ... - ABC News

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By: Elias J. Atienza

Representative Justin Amash (R-MI) baffled many Republicans and others when he voted against HR3004, known as Kates Law, an immigration bill passed by the House that toughens up punishments against illegal immigrants. As noted byBreitbart,a pro-Trump website, Amash was the only Republican to vote against the law, while 24 Democrats voted for it. The bill passed 257-167.

Amash voted against the bill because it stems from a provision that denies Fifth Amendment due process to certain criminal defendants.

Amash wrote:

As its text makes clear, the Fifth Amendment applies explicitly to all person[s] within the United States, including suspected illegal aliens who are arrested, charged, and tried within the United States. The Constitution uses the word citizen in other provisions whenever that word is intended. This interpretation of the Constitutions applicability is shared by the Supreme Court, including among the conservative justices.

Furthermore, he writes that the bill unconstitutionally eliminates the opportunity for those charged with illegal re-entry to challenge the validity of a removal order which, in his opinion, violates the Fifth Amendment.

He writes:

If a defendant never has a meaningful opportunity to have a judge review her removal order and, under this bill, she is prohibited from challenging her removal order during the criminal proceedings for illegal re-entry, then she could be convicted of a felony without ever having had the chance to challenge whether the order to remove herwhich is an element of the crime!was legally valid. As the Supreme Court held in United States v. Mendoza-Lopez, 481 U.S. 828 (1987), this would be a violation of the defendants due process rights.

The Hillsummarized the bill:

The bill includes a provision that ensures immigrants in the U.S. illegally who are charged with a serious crime are detained during their deportation proceedings. It also requires that localities comply with Immigration and Customs Enforcement requests to detain suspects for extra time, since some jurisdictions currently dont always cooperate. The extended detentions allow immigration enforcement authorities to pick up suspected criminal immigrants from local jails.

Many people in the comments section opposed him, with one commentator saying that he should have voted for the bill and let the Supreme Court deal with the constitutionality of it. Amash hit back, writing,First, thats not how our oath of office or our system of government works. Second, the Supreme Court already has held that this is unconstitutional. Theres an opinion cited in my explanation that is directly on point.

Amash also voted against the HR3003, which was theNo Sanctuary for Criminals Act, which he claims violates several amendments of the Constitution including the 1st, 5th, and 11th. He has voted for defunding sanctuarycities in the past.

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Justin Amash Explains His Vote Against 'Kate's Law' - The Libertarian Republic

SPRINGFIELD, Mo. -- TV courtroom dramas have made the work of lawyers and police part of our culture.

Above all, our founders wanted to keep government power limited and out of the people's lives.

Part of making sure government stays in check is the Fourth Amendment's enshrining the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."

The idea was that the founders wanted to prevent political enemies from using the government to punish opponents or others who might just be unpopular in society.

This is why to search you or your property, law enforcement usually has to get a writ of permission, otherwise known as a warrant, from a judge. Involving judges in the process was intended to spread the power to investigate and punish potenial wrongdoers among multiple branches of government.

Of course, the Fourth Amendment's key term is here "unreasonable." where law enforcement can make a case that there is probable cause to believe that someone committed a crime, warrants are quickly issued.

And, it might interest you to know that there are over 20 exceptions to requiring a warrant to do a search. These include the plain sight and exigent circumstances doctrines and they deal with situations in which law enforcement see a crime in progress or believe one is imminent.

The founders also codified rights against self-incrimination, or testitfying against youself, in the Fifth Amendment. This is where the phrase "pleading the fifth" comes from. Meanwhile, the Fifth Amendment also prevents double jeopardy-which is being tried for the same crime twice. And, perhaps most importantly, states clearly that no one shall be denied life, liberty, or property without the due process of law.

Our justice system isn't perfect of course, and people may still fall victim to corruption and incompetence in criminal investigations, but the Fourth and Fifth Amendment go a long way to securing some key safeguards of individual liberties.

(Brian Calfano)

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Analysis: How the Constitution Limits Government Power - OzarksFirst.com

The witness, Nicholas Skidmore, pleaded guilty last month to conspiracy to commit murder and tampering with a witness in the May 27, 2016, murder of Robert Pierog.

Authorities say that on that date, Skidmore, who has yet to be sentenced, drove Yeargle, who like himself is from Littleton, and Quade Kadle, of Jefferson, to pick up the .22 caliber rifle that Yeargle later used to gun down Pierog, who previously had made controlled buys of drugs that led to several arrests by Bethlehem police.

Skidmore confessed to driving Yeargle and Kadle to the Littleton Walmart where the pair bought bandanas and plastic gloves, then to Pierogs South Main Street apartment, where Kadle lured Pierog outside and Yeargle allegedly shot him multiple times, and then away from the scene as Yeargle and Kadle disposed of the evidence.

Ted Lothstein, who with Richard Guerriero represents Yeargle, told Judge Lawrence MacLeod in Grafton County Superior Court Wednesday that he hoped the judge would allow the defense the widest latitude possible in questioning Skidmore about inconsistencies in his prior statements to investigators.

Lothstein said Skidmore said he once owned the rifle Yeargle allegedly used, but offered different ways of how he gave it to Yeargle some 18 months earlier, including for $100 cash and a small amount of marijuana and for a more substantial quantity of pot, too.

The second version was made during the proffer as part of Skidmores plea agreement with the state, said Lothstein.

He said the agreement was very generous because Skidmore could be out of prison in as little as eight years.

Lothstein questioned whether Skidmore downplayed how much marijuana he got from Yeargle because he may have learned that trading a firearm for drugs is a federal crime punishable by up to five years in prison that would run consecutively with any other sentences.

The attorney also wondered whether under cross-examination by the defense, Skidmore might invoke his Fifth Amendment right against self-incrimination.

Assistant Attorney General Geoffrey Ward said there were no inconsistencies in Skidmores statements and that it was an extreme logical leap for Lothstein to suggest that Skidmores story changed in response to advice from his attorney or because Skidmore otherwise learned about the drugs-firearms barter law.

Ward said he expected Skidmore to testify completely in Yeargles trial, adding that from past experience the specter of a prosecution witness invoking the Fifth Amendment had been used to dirty up the states witness.

Lothstein and Guerriero also asked MacLeod to suppress parts of an interview Yeargle gave to Littleton police after Yeargle had indicated he no longer wanted to answer questions and also for his Facebook records from the period immediately before and after Pierogs murder.

MacLeod took the three motions under advisement.

Yeargle is scheduled to go to trial on Nov. 13 and Kadle is set to go to trial on Feb. 6, 2018.

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Defense to challenge credibility of state witness in 2016 Littleton killing trial - The Union Leader

Do We Really Want People to Learn How to Spot Micro Facial Expressions?

Paul Ekman Group

By definition, micros leak emotions that people dont want others to know they are feeling. Sometimes, even the person showing the micro is not aware of the emotion that is leaking out. My Micro Expression Training Tool (METT) enables those who study it to take this information from people attempting to conceal their emotions (and, in a sense, they are stealing this information).

Who has the right to do that, to tear away the curtains disguise? Certainly the Law Enforcement Officers (LEOs), although I have argued (a bit rhetorically) that LEOs who have been trained to spot micros should offer those they talk to the opportunity to wear a mask or facial cover.

The Fifth Amendment to the Constitution protects us from self-incrimination, but micros may provide the Law Enforcement Officer (LEO) who took our training just such incriminating information- just what the person involuntarily showing the micros doesnt want a LEO to know. Would it be in the spirit of the Fifth Amendment for LEOs who have learned how to spot micros to at least inform those they interview that they have been specially trained to take this information- to invade privacy without consent? Should they offer criminal suspects the right to wear a mask to preserve their Fifth Amendment protection?

Many people (lawyers, business operators, salespersons) whose interests are not always the same as those whose micros they learn to spot, can now (without forewarning) invade privacy, taking information without permission that the provider would not want them to have. I never thought about these issues when I developed METT, but I recognize that my training courses enable an invasion of a very private realm of peoples lives: the feelings they dont want everyone (and sometimes, no one) to know they are experiencing.

And yet, such an invasion of privacy can serve the public good. It helps the health care provider doctor, nurse, or other caregiver tune in and, therefore, be better able to help.

I once thought that I might be able to control who else would be able to use METT, but I learned from my colleagues in the Department of Defense that there is no way to do that. A tool, once created and accessible on the internet, is available to everyone who pays the nominal price. All I can hope, my Defense Department colleagues advised, is that it will be used more for what I consider to be good, to help people, than to harm or exploit people.

The proverbial cat is out of the bag, free to go anywhere!

Dr. Paul Ekman is a well-known psychologist and co-discoverer of micro expressions. He was named one of the 100 most influential people in the world by TIME magazine in 2009. He has worked with many government agencies, domestic and abroad. Dr. Ekman has compiled over 40 years of his research to create comprehensive training tools to read the hidden emotions of those around you. To learn more, please visit: http://www.paulekman.com.

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The dangers of reading micro expressions - HuffPost

(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