Brief for Amici Curiae Legal Historians in Support of Petitioners, Hernandez v. Mesa, No. 15-118 (U.S. Dec. 12, 2016)

Authors

• Richard L. Aynes, University of Akron School of LawFollow
• Michael Kent Curtis, Wake Forest University School of Law
• Paul Finkelman, University of Saskatchewan College of Law
• Stephen E. Gottlieb, Albany School of Law
• Wilson R. Huhn, The University of Akron School of LawFollow
• Rebecca E. Zietlow, University of Toledo School of Law

Document Type

Court Filing

Publication Date

12-12-2016

Abstract

This case is about cross-border responsibilities of U.S. government agents. Accordingly your amici seek to explain the history and meaning of the Due Process Clauses as they apply to any “person.”

The meaning of any person affects whether there is legal responsibility for the intentional cross-border killing of a fifteen-year old boy by a government agent who had “no reason to suspect. . . had committed any crime or engaged in any conduct that justify the use of force, let alone deadly, force,” and for whose death there was “no apparent justification,” Hernandez v. United States, 785 F.3d 117, 119 (5th Cir. 2015) (en banc), adopting the statement of facts by the panel in Hernandez v. United States, 757 F.3d 249, 255-57 (5th Cir. 2014) although reversing the panel on the law.

The framers of the 5th Amendment Due Process Clause deliberately chose not limit it to citizens or even inhabitants, but rather used the broader language that “no person” could be deprived of life, liberty or property without due process of law.

The framers of the 14th Amendment Due Process Clause deliberately chose not limit it to citizens or even inhabitants, but rather used the broader language that “no person” could be deprived of life, liberty or property without due process of law, openly acknowledging that they had taken the language of the clause from the 5th Amendment.

Taken together, this history shows that the 5th Amendment was designed to protect the rights of both citizens and non-citizens by prohibiting the government from acting arbitrarily or by violating the fundamental rights of any person.

Publication Title

United States Court of Appeals for the Fifth Circuit

Recommended Citation

Aynes, Richard L.; Curtis, Michael Kent; Finkelman, Paul; Gottlieb, Stephen E.; Huhn, Wilson R.; and Zietlow, Rebecca E., "Brief for Amici Curiae Legal Historians in Support of Petitioners, Hernandez v. Mesa, No. 15-118 (U.S. Dec. 12, 2016)" (2016). Con Law Center Amicus Briefs. 10.
https://ideaexchange.uakron.edu/conlawakronamicus/10