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Court seeks U.S. views on cross-border shooting

The Supreme Court on Monday sought the federal government’s views on a plea by the Mexican parents of a fifteen-year-old boy who was killed by a U.S. border agent shooting across the boundary between the two countries.  The parents are arguing that the U.S. Constitution should be extended beyond the border to provide a remedy for their son’s death.

The Court did not grant review of any new cases.

The case sent to the Justice Department for reaction, Hernandez v. Mesa, involves an incident in June 2010, when a group of Mexican boys were playing in the border area near El Paso, Texas.  A U.S. Border Patrol agent, Jesus Mesa, Jr., arrived on the scene; he detained one of the boys, but Sergio Adrian Hernandez Guerca ran back under the bridge that leads into Mexico.  Mesa opened fire, and the boy was killed, with at least one shot to the head.

The Mexican government protested the incident, saying it was unjustified and that it was a part of a troubling trend of the use of excessive force by U.S. agents along the border.  News accounts at the time said this was the second death of a Mexican national at the hands of border agents in a two-week period.

An FBI investigation concluded that Mesa had fired in response to the boys’ rock-throwing and their refusal to stop when ordered to do so.  Videotapes later showed that Hernandez was not personally throwing rocks at the time, but was shot when he peered out from behind a pillar on the bridge.

Border Patrol regulations restrict the use of deadly force to incidents in which agents believe that it is necessary to protect themselves or other persons from imminent danger of death or serious physical harm.

The boy’s parents sued the agent, arguing that his death violated the Fourth and Fifth Amendments of the Constitution, and that the Constitution should apply across the border when U.S. agents were involved.  The U.S. Court of Appeals for the Fifth Circuit rejected that plea with a deeply divided decision.  It ruled that the agent was entitled to qualified immunity on the Fifth Amendment question and that the Fourth Amendment did not apply because the youth had no significant connection with the United States at the time.

The parents’ petition to the Supreme Court relies heavily upon its 2008 decision in Boumediene v. Bush, which extended to the U.S. military prison at Guantanamo Bay, Cuba, at least some constitutional provisions.

There is no deadline for the U.S. Solicitor General to file the government’s views with the Court.

The Court took a number of other significant actions in the orders it issued:

** It refused, over the dissents of three Justices, to review a federal appeals court decision in Rapelje v. Blackston that an individual on trial for murder in Michigan was entitled to bring into the trial as evidence the statements of two witnesses recanting earlier testimony against the accused individual.  The Court did not explain its denial.  Justice Antonin Scalia, writing for the dissenters, argued that the Court had never extended the Constitution’s Confrontation Clause to create a right to present evidence from statements external to the trial.  Scalia, joined by Justices Samuel A. Alito, Jr., and Clarence Thomas, argued that the Court should have summarily overturned the  ruling by the Sixth Circuit to teach that court a lesson because it has “acquired a taste for disregarding” the federal law (the Antiterrorism and Effective Death Penalty Act) that controls the authority of federal courts to decide habeas challenges by state prisoners.

** The Court left intact a ruling by the U.S. Court of Appeals for the Fifth Circuit, denying a right to recover attorney’s fees for those who win a preliminary round in a federal civil rights case, but do not win on the legal merits of the case, and therefore do not qualify as “prevailing parties” entitled to reimbursement of their attorney’s fees and court costs. The case, Davis v. Abbott, grew out of the court battle over redistricting of the Texas state senate following the 2010 census.

** The Court declined, in the case of McDonough v. DuPont, to consider putting a new limit on how a person who loses the right to have a gun under federal law can regain that right.  The New Hampshire Supreme Court ruled that, if such an individual has his right to a gun restored under state law, that is enough to satisfy any federal requirement, and there is thus no need for the individual to have to regain other civil rights such as the right to vote, run for office, or serve on a jury.

** The Court extended to eighty minutes, instead of the usual sixty, the time set aside for a hearing on January 11 on Friedrichs v. California Teachers Association — a case testing whether non-union public employees, like teachers, have a First Amendment right not to pay any dues or fees to support any union representation activity.  The challengers to such a fee requirement will have forty minutes to argue, the teachers’ union will have fifteen minutes, and two amici supporting the union will have time at the lectern — the state of California, fifteen minutes, and the federal government, ten minutes.

Recommended Citation: Lyle Denniston, Court seeks U.S. views on cross-border shooting, SCOTUSblog (Nov. 30, 2015, 12:27 PM),