Supreme Court seems split on boy’s death near border

WASHINGTON — Examining a tragic shooting death on the U.S. border with Mexico, a divided Supreme Court on Tuesday puzzled over the rights of foreigners to sue in American courts.

The case involving a Mexican teen slain by a U.S. Border Patrol agent’s gunshot, which traveled across the border, elicited questions about how a ruling could affect victims of American drone strikes. The court battle over President Donald Trump’s ban on travelers from seven majority Muslim nations also lurked in the background: While the legal issues are different, both issues have courts weighing the rights of foreigners.

A 4-4 tie is expected to provide Judge Neil Gorsuch an early opportunity to cast a key vote if he is confirmed to the court before the term ends in late June.

Tuesday’s case, which already has divided the U.S. and Mexican governments, arose from a June 2010 shooting in the wide, concrete-lined ditch — actually the dry bed of the Rio Grande river — that separates El Paso, Texas, from Ciudad Juarez, Mexico.

U.S. officials have alleged that the boys were trying to sneak over the border, and then began throwing rocks when Agent Jesus Mesa Jr., on a bicycle patrol, detained one of their friends. But others say that the boys dared one another to run up a concrete incline and touch the barbed wire of the American border fence.

The agent was on the U.S. side

of the border when he fired his gun, striking Sergio Adrian Hernandez Guereca, who was on the Mexican side.

U.S. officials chose not to prosecute Agent Mesa in the killing of the teenager, and the Obama administration refused a request to extradite him so he could face criminal charges in Mexico. It is among 243 shootings along the U.S.-Mexican border in modern times, about a dozen of them involving shots fired by U.S. agents across the border. At least six have resulted in death.

Lower courts dismissed the parents’ lawsuit. The Supreme Court is considering whether noncitizens injured or killed outside the United States can have their day in u.s. courts.

The parents argued that the lawsuit is their only chance for some measure of justice in their son’s death — an incident that led to reforms in the U.S. Customs and Border Protection agency — and some justices were seen as agreeing.

In past cases, courts that have limited the right to sue have “been able to point to some alternative remedy,” Justice Elena Kagan said. “And here, there really is nothing.”

Justice Kagan and the other three liberal justices indicated they would support the parents’ lawsuit because the shooting happened close to the border in an area where the nations share some responsibilities.

But Justice Anthony Kennedy and other conservative justices suggested that the boy’s death on the Mexican side of the border was enough to keep the matter out of U.S. courts. Justice Kennedy noted the court has been reluctant to allow civil rights lawsuits like the parents’ lawsuit, especially when they may affect international relations.

Other justices worried about a decision that could open courthouse doors to victims of U.S. drone strikes, or other military actions. “How do you analyze the case of a drone strike in Iraq where the plane is piloted from Nevada?” Chief Justice John Roberts asked.

Lawyer Robert Hilliard, representing the parents, said the court could limit its decision to incidents that occur near the border.

The Trump administration, like its predecessor, argues that the location of the teen’s death, in Mexico, is the end of the story.

Deputy Solicitor General Edwin Kneedler and Agent Mesa’s lawyer acknowledged that someone killed by an agent on the U.S. side of the border could sue.

A decision in Hernandez v. Mesa, 15-118, is expected by late June. In the event of a tie vote, the court could order new arguments if Judge Gorsuch is on the bench.

Also on Tuesday, the Supreme Court turned down an appeal Tuesday from an Alabama death row inmate who said the state intended to kill him using chemicals that could cause excruciating pain, although Justice Sonia Sotomayor, joined by Justice Stephen Breyer, issued an impassioned 18-page dissent.