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U.S. Agent's Cross-Border Shooting of Child Comes Before Supreme Court

By Casey C. Sullivan, Esq. on February 21, 2017 | Last updated on March 21, 2019

Sergio Hernandez died in Mexico, but the bullet that killed him was fired from the United States. The 15-year-old child was shot in the head by Jesus Mesa, a Border Patrol agent, in 2010. Mesa contends that the teen was throwing rocks to distract agents from smugglers. His family says he was simply playing with friends.

Officials declined to prosecute Mesa and the U.S. government refused to extradite him to Mexico, so his family filed a civil suit in the U.S., arguing that Mesa's use of deadly force violated the Fourth Amendment. Now, they're before the Supreme Court, arguing today for the right to pursue their claims.

The case, Hernandez v. Mesa, raises several difficult constitutional issues. First, how should the Fourth Amendment's protections against unjustified deadly force be applied extraterritorially? Through "objective factors and practical concerns" or by looking at the "significant voluntary connections" between an alien and the U.S.? Second, can the Border Patrol agent's qualified immunity claims be impacted by facts he did not know at the time, such as Hernandez's citizenship? Finally, does Bivens even allow the family to bring a claim?

Beyond these issues, too, the case falls in the middle of a heated debate over immigration policy and the United States' relationship with its neighbor to the south.

Searching for the Proper Rule

It was with this backdrop that the Supreme Court heard oral arguments in the case today. Robert C. Hilliard argued for the Hernandez family, describing the case was one of the "simplest extraterritorial cases this Court will ever have in front of it."

The discussion quickly turned to what rule the petitioners would propose to allow such Fourth Amendment claims to go forward. "When there is a cross-border shooting involving a federal law enforcement office on U.S. soil, and the resulting injury is in close proximity, then Fourth Amendment constraints on that officer should apply," Hilliard said.

The justices, however, struggled to pin down less "narrowly confined" principles. Would a drone strike, Chief Justice Roberts asked, raise Fourth Amendment claims? If military officers are excluded from the rule, Justice Breyer wondered, what about a drone strike supported by civilian personnel, Justice Breyer wondered? Justice Alito, too, chimed in. What if the victim wasn't right next to the border, he questioned, but 200 yards away?

Hilliard urged the Court to extend the logic of Boumediene to this case. There, the Court held that, detainees in Guantanamo Bay, Cuba, had a constitutional right to challenge their detention, despite being in Cuba. Here, you have an officer where "100 percent of his conduct is inside the United States," despite Hernandez being in Mexico. "And while inside the United States, under his own Constitution, which he has sworn to abide by, he shoots."

Justice Ginsburg seemed to echo that sentiment later on. When Randolph J. Ortega, arguing for Mesa, asserted that the U.S. had no jurisdiction over the land where Hernandez died, as it did in Guantanamo, Justice Ginsburg interjected. This is about U.S. law operating on a U.S. official acting inside the United States. "This case has," she said, "United States written all over it."

A Divided Court

In the end, the Justices seemed evenly split. The Court's more liberal justices seemed to indicate that the family could pursue a Bivens suit in this context, while Chief Justice Roberts and Justice Alito seemed skeptical. (Justice Thomas, of course, remained silent, but would be expected to vote with his more conservative colleagues.)

Justice Kennedy noted that the Supreme Court hasn't recognized a Bivens action since 1988 and wondered whether it might be best to leave such issues, touching on the "most sensitive areas of foreign affairs," to the political branches.

A split Court would leave the Fifth Circuit's ruling for Mesa in place and keep the Hernandez family out of Court. But, it could also spur the Court to rehear the case once more, should a new justice have joined the bench.

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