YESHIVA UNIVERSITY
Department of
Pre Law Advising
2017 LANGFAN FAMILY
UNDERGRADUATE CONSTITUTIONAL ORATORY COMPETITION
MEN’S & WOMEN’S COMPETITIONS
Location: Beren Campus, 245 Lexington Avenue, 1st Floor Lobby
Date: Sunday, April 2, 2017
Time: 2:00 PM Reception, 2:30 PM Check in for Participants
Competitions Begin at 3:00PM
*Prizes: $800 (First Place); $600 (Second Place); $400 (Third Place)
*Separate prizes will be awarded to participants from each campus.
THE FOURTH AMENDMENT’S PROHIBITION ON
UNJUSTIFIED DEADLY FORCE: Should the Supreme Court
apply a formalist or a functionalist analysis in
determining the extraterritorial application of the Fourth
Amendment?
ISSUE BACKGROUND
“The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but
upon probable cause….” U.S. Const. Amend. IV. The Fourth Amendment of the U.S.
Constitution protects “people’s right to privacy and freedom from arbitrary
governmental intrusions,” https://www.law.cornell.edu/wex/fourth_amendment (last visited
March 14, 2017), while the Fifth Amendment protects people from the deprivation of “life,
liberty, or property, without the due process of law, U.S. Const. Amend. V.
On June 7, 2010, Sergio Hernandez was shot and killed by Jesus Mesa. What
complicates matters is that Hernandez, a citizen of Mexico, was standing in Mexico at
the time of his death, while Mesa, a U.S. Border Patrol Officer and U.S. citizen, was
standing in the United States. There seems to be no dispute that had Sergio been
standing in the US at the time he was killed, he would have been protected by the
Fourth Amendment, and his parents would then be allowed to sue in the US courts.
The question is where and when do the protections and rights afforded by the Fourth
Amendment apply to non-U.S. citizens outside the United States or outside territory
controlled by the United States. In Boumediene v. Bush, 553 U.S. 723, 755 (2008), the
Supreme Court rejected the argument that, “as applied to noncitizens, the Constitution
necessarily stops where de jure sovereignty ends.” Rather, the Court employed a test
based upon what it deemed to be “objective factors and practical concerns, not
formalism.” Id. This decision, however, was in contrast to the decision in United States
v. Verdugo-Urquidez, 494 U.S. 259 (1990), which embraced a formalist analysis in
determining the extraterritorial application of the Fourth Amendment in circumstances
where the U.S. cannot exercise its Constitutional power or authority.
This case raises the issue of border enforcement and control and the extent to which
Constitutional doctrine must be followed in maintaining the U.S. borders. But, more
generally, the practical concerns here are much heavier inasmuch as they concern the
consequences for causing death and the rights of family members of the deceased to
pursue their claims in U.S. courts. The Supreme Court has to decide whether, in this
case, the U.S. had any control, power or authority over the location of the incident, and,
if so, whether formal or functional factors should be used to determine the application of
the Fourth Amendment. Is this location under de jure U.S. control? Should function
factors be considered? Are there slippery slope arguments that need to be considered?
Resolved: The Fourth Amendment’s protections do not extend to non-U.S.
citizens who are not inside the borders of the United States.
GETTING STARTED
This competition is open to all Yeshiva University undergraduate students on all
campuses, regardless of major. It is a public speaking competition aimed at promoting
student awareness and understanding of important Constitutional issues and
developing the skill set necessary to research, discuss and debate such topics.
You may argue for or against the above resolution. An essential component of your
presentation is the depth of your knowledge, gained through research. You, as a
participant, should be familiar with the legal issues at stake in the debate from the
perspective of an informed and concerned citizen. We recognize that you are an
undergraduate student, not a lawyer.
Begin by reading the Amendments IV and V of the United States Constitution. Then, try
searching for newspaper articles and blogs online. Once you have a good sense of the
basic issues, the cases and articles listed below will help you formulate your argument.
PRIMARY SOURCES
U.S. Const. Amend. IV
U.S. Const. Amend V
Hernandez v. Mesa, 785 F.3d 117, 5th Cir. (2015)
Boumediene v. Bush, 553 U.S. 723 (2008)
Rasul v. Busg, 542 U.S. 466 (2004)
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)
The Insular Cases: De Lima v. Bidwell, 182 U.S. 1 (1901)
Dooley v. United States, 182 U.S. 222 (1901)
Armstrong v. United States, 182 U.S. 243 (1901)
Downes v. Bidwell, 182 U.S. 244 (1901)
Hawaii v. Mankichi, 190 U.S. 197 (1903)
Dorr v. United States, 195 U.S. 138 (1904)
SECONDARY SOURCES
Jesus C. Hernandez, Et Al., v. Jesus Mesa, Jr., No. 15-CV-118, Oral Argument
Transcript, February 21, 2017.
https://www.supremecourt.gov/oral_arguments/argument_transcripts/2016/15118_3e04.pdf
Meg Wagner, Supreme Court to Hear Case of Mexican Teen, Fox News, February 21,
2017.
http://fox6now.com/2017/02/21/supreme-court-to-hear-case-of-mexican-teen-killed-byu-s-border-agent-tmwsp/
Amy Howe, Argument Preview: Justices take on issues arising out of cross-border
shooting, Supreme Court of the United States Blog, February 14, 2017.
http://www.scotusblog.com/2017/02/argument-preview-justices-take-issues-arisingcross-border-shooting/
Jesus C. Hernandez, Et Al., v. Jesus Mesa, Jr., No. 15-CV-118, Brief of Amicus Curiae
Professor Gregory C. Sisk in Support of Neither Party.
http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/brief
s_2016_2017/15-118_amicus_np_prof_gregory_c_sisk.authcheckdam.pdf
Jesus C. Hernandez, Et Al., v. Jesus Mesa, Jr., No. 15-CV-118, Reply Brief for
Petitioners, filed February 8, 2017.
http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/brief
s_2016_2017/15-118_pet_reply.authcheckdam.pdf
Jesus C. Hernandez, Et Al., v. Jesus Mesa, Jr., No. 15-CV-118, Brief on the Merits for
Responders, filed January 9, 2017.
http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/brief
s_2016_2017/15-118_resp.authcheckdam.pdf
Jesus C. Hernandez, Et Al., v. Jesus Mesa, Jr., No. 15-CV-118, Brief for Petitioners,
filed December 2, 2016.
http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/15118_pet.authcheckdam.pdf
Adam Liptak, An Agent Shot a Boy Across the US Border. Can His Parents Sue? New
York Times, October 17, 2016.
https://www.nytimes.com/2016/10/18/us/politics/an-agent-shot-a-boy-across-the-usborder-can-his-parents-sue.html
Jesus C. Hernandez, Et Al., v. Jesus Mesa, Jr., No. 15-CV-118, ABA Preview.
http://www.americanbar.org/publications/preview_home/2016_2017_briefs/15-118.html
Michele Levy Cohen, United States v. Verdugo-Urquidez, the Fourth Amendment Has
Limited Applicability to Aliens, Maryland Journal of International Law, Vol. 14, Issue 2,
Art. 3.
http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1324&context=mjil
These sources may be found via LexisNexis Law Directory online, which may be
accesses from any of YU’s University libraries. Another online database available from
the University library is HeinOnline. You can also use Google Scholar. These
materials, databases and search engines are only suggestions, and should not limit
your research.
***JUDGING CRITERIA***
Competitors will be judged based on the following:
 The clarity of the argument/thesis
 Cohesiveness and use of research material to support the argument – you must
cite sources in the speech
 Effective rebuttal or anticipated counter-arguments – competitors must consider
and rebut the opposing side’s arguments
 Overall style and effectiveness of delivery
YOU WILL HAVE NO MORE THAN FIVE MINUTES TO PRESENT YOUR
ARGUMENT BEFORE A PANEL OF JUDGES. There will be no time allotted for a
rebuttal. Timing will be strictly enforced, so please prepare your remarks accordingly.
If you plan to participate, please email Dassy Chelst ([email protected]) no later than
WEDNESDAY, MARCH 29, 2017.
If you have any questions or need help with research, please email Ms. Chelst.