USA TODAY International Edition
SUPREME COURT DIVIDED OVER U. S.- MEXICO BORDER SHOOTING
Liberal justices offer hope to family of teen
WASHINGTON A closely divided Supreme Court struggled Tuesday with what one justice called the “very sympathetic case” of a Mexican teenager shot and killed from across the border by a U. S. Border Patrol agent.
Denied any legal recourse by lower courts that said Sergio Adrián Hernández Güereca lacked constitutional protection inside Mexico, the 15- year- old’s parents received encouraging support from the high court’s liberal justices during an hour- long oral argument that could prove pivotal.
“This case has, as far as the conduct is concerned, United States written all over it,” said Justice Ruth Bader Ginsburg, citing the actions of Border Patrol agent Jesus Mesa, who was in El Paso when he shot Hernandez in the head, killing him instantly, in 2010.
Justices Stephen Breyer and Elena Kagan stressed the unique nature of the incident, which occurred in a culvert containing the dry river bed of the Rio Grande. Justice Sonia Sotomayor suggested there should be some civil remedy available to the family.
But the court’s conservative justices said no such constitutional claim for damages against a federal official has been allowed for almost 30 years. They warned that creating one in relation to the contentious U. S.- Mexico border could lead to other claims by foreign nationals outside the U. S. — perhaps in the case of drone strikes, Chief Justice John Roberts said.
Justice Anthony Kennedy, most often the swing vote on the court, said determining the rules of engagement along the border has been a matter for the executive and legislative branches of government to address. “This is one of the most sensitive areas of foreign affairs,” he said.
The facts of the case are disputed and would be left for a trial court to resolve if the justices let the lawsuit proceed. The family’s lawyers say Hernández was playing with three friends in the 33foot- wide concrete culvert separating El Paso and Ciudad Juárez, Mexico. Mesa’s lawyers say he responded to a group of suspected illegal aliens throwing rocks at Border Patrol agents. Cellphone videos appeared to show that Hernández was hiding beneath a train trestle when he was shot in the head.
Lower courts have said that because Hernández was a Mexican citizen in Mexico, he lacked con- stitutional protection against unreasonable use of deadly force under the 4th Amendment, as well as due process rights under the 5th Amendment. And while a Mexican court could have tried Mesa there, the U. S. government refused extradition.
All that occurred during the Obama administration. On Tuesday, the U. S. solicitor general’s office for the first time was representing the Trump administration — one that wants to build a wall along the entire U. S.- Mexico border, which has been the scene of illegal immigration, drug smuggling and hundreds of incidents involving deadly force.
A 2013 investigation by The Arizona Republic found that Border Patrol agents and Customs and Border Protection officers killed at least 42 people — including at least 13 Americans — in an eightyear period. At the time, none of the agents or officers responsible were publicly known to have faced consequences.
The family’s lawyer, Robert Hilliard, told the justices that six Mexican citizens have died as a result of 10 cross- border shootings, only to be left without any legal remedy because the Constitution “turns off at the border.”
He was met with skepticism from Roberts and Justice Samuel Alito, who said a decision permitting cross- border claims against federal officials could open the floodgates to other such lawsuits. What if the victim was 19 instead of 15, Alito said, or was armed but with his hands up? What if he was 200 yards away? What if the Border Patrol agent crossed into Mexico?
Randolph Ortega, representing Mesa, said a ruling in Hernandez’s favor would “plunge the lower courts into a sea of uncertainty.” He called the dividing line between the countries “a real border,” noting that “wars have been fought to establish borders.”
The Mexican government noted in court papers that many of its residents “spend much of their day within shooting distance” of Border Patrol agents. “There is no bright line at the border beyond which all constitutional rights cease,” it argued.
To back up its claim, the Mexican government cited a 2008 Supreme Court case that granted detainees at Guantánamo Bay, Cuba, the right to sue federal agents. But the Justice Department argued in response that the detention facility was under U. S. control, while Hernández was inside Mexico.
Breyer said the two cases were not that different, since the United States and Mexico share administrative and financial control over the culvert that contains, as Kagan noted, a border “that isn’t even marked on the ground.”
“This is a boundary case,” Breyer said. “I guess it’s like nothing I’ve seen before.”