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Argument preview: Justices take on issues arising out of cross-border shooting

Portrait of Sergio Adrian Hernandez Guereca, 15 year - old who was killed yesterday by a Border Patrol agent pictured at his graduation from the secundaria. PHOTO COURTESTY OF THE HERNANDEZ GUERECA FAMILY

Sergio Hernández at his elementary school graduation (Courtesy of the family of Sergio Hernández)

In any context, the case of Hernández v. Mesa would be an important one: The parents of Sergio Hernández, a Mexican teen shot by a U.S. Border Patrol agent while standing on Mexican soil, are seeking to sue the agent responsible for their son’s death in U.S. courts. But with the United States’ relationship with Mexico already strained in the wake of the Trump administration’s announcement that it plans to build a wall along the U.S.-Mexico border – and have Mexico reimburse the U.S. for the cost of construction – the lawsuit filed by Jesus Hernández and his wife, Maria Guadalupe Guereca Bentacour, takes on even more significance. Supporting Mesa, the federal government insists that allowing suits like this one could “significantly disrupt the ability of the political branches to respond to foreign situations involving” the U.S.’s national interest, while the Mexican government – supporting the parents – suggests that shutting the lawsuit down could harm U.S.-Mexico relations.

Just as the United States and Mexico disagree about how this case should be resolved, Hernández’s parents and Mesa tell divergent stories about what actually happened on June 7, 2010. Hernández’s parents contend that the 15-year-old was fooling around with his friends in the culvert between El Paso, Texas, and Juarez, Mexico. The group was, they say, “playing a game in which they dared each other to run up the culvert’s northern incline, touch the U.S. fence, and then scamper back down.” As Hernández was running away from the fence back toward Juarez, on the Mexican side of the border, Jesus Mesa fired at him from approximately 60 feet away, on the U.S. side of the border. Mesa’s shot struck Hernández in the head, and he died on the spot.

Mesa does not dispute that he shot Hernández from the other side of the U.S.-Mexico border. But he portrays Hernández as far less innocent than his parents suggest, noting that – according to U.S. Department of Justice records – Hernández “had been arrested twice before for alien smuggling and had been given voluntary returns to Mexico” because he was a juvenile. A review of the shooting incident, Mesa contends, found that his “use of force was result of Hernández and the other individuals surrounding him and throwing rocks at him while refusing his verbal commands to stop.” Moreover, he adds, a DOJ investigation concluded “that the shooting took place while alien smugglers, including Hernández, unsuccessfully attempted an illegal border crossing and began to hurl rocks from close range at Agent Mesa while he was attempting to detain a suspect.”

The justices will not determine which of these accounts is correct. Instead, the question before the court is whether – assuming their account is correct – the parents’ lawsuit in U.S. courts can go forward at all. A federal district court dismissed the lawsuit, which alleged that Mesa had violated both the Fourth Amendment, which protected Hernández from being the victim of unjustified and lethal force, and the Fifth Amendment, which gave him a right not to be deprived of his life without due process of law. A three-judge panel of the U.S. Court of Appeals for the 5th Circuit would have allowed the parents to bring at least some of their claims, but the full 5th Circuit reversed that ruling. Hernández’s parents then asked the Supreme Court to weigh in, which it agreed to do last fall.

There are three main issues at play before the Supreme Court now. The first centers on whether the Fourth Amendment’s bar on unjustified deadly force applies to a scenario like this one, when the victim of the shooting is outside the United States, and how courts should make that determination.

Hernández’s parents argue that courts should use a “functionalist” approach, in which they look at more than merely whether the United States controls the area in which the conduct occurred. The Supreme Court endorsed such a test in a case called Boumediene v. Bush, they contend, in holding that detainees held at Guantanamo Bay could challenge the legality of their detentions in a U.S. court. Other factors for courts to consider under a functionalist approach include “the citizenship and status” of the person seeking constitutional protection, the place where the alleged constitutional violation occurred, and any “practical obstacles” that would result if a court were to rule that the Constitution applied.

Here, they conclude, all these factors militate in favor of holding that Hernández was protected by the Fourth Amendment. He was an unarmed “civilian teenager from a friendly neighboring nation” who was shot “just steps from the formal boundary line” between the United States and Mexico. And although Mesa was in the United States when he shot Hernández, the cities of El Paso and Juarez are “inextricably linked” – for all intents and purposes, a “single metropolitan area” regardless of nationality. Moreover, the parents maintain, allowing their lawsuit to go forward will not create any “practical obstacles.” Border Patrol agents are already barred from using deadly force except in very specific and limited circumstances, so neither the agency’s policy nor the behavior of agents themselves will have to change. Finally, because the Border Patrol is “a permanent presence at the border,” controlled only by the executive branch of the federal government, the U.S.’s relationship “with Mexico would be improved, not hurt, by extraterritorial application.”

Mesa and the federal government counter that the Supreme Court’s decision in Boumediene rested on the fact that the United States has “de facto sovereignty” over Guantanamo Bay. Any “functionalist” test that the Boumediene court might have articulated does not extend to cases – like this one – in which “the United States clearly exercises no power, control, or authority over the area/territory where the incident complained of occurs.” Instead, they argue, this case is directly governed by Verdugo-Urquidez v. United States, the Supreme Court’s 1990 decision holding that the Fourth Amendment does not apply to the search and seizure of a Mexican citizen’s property in Mexico.

The second question before the court is whether, even if Mesa did violate Hernández’s rights under the Fifth Amendment, he is nonetheless entitled to immunity from suit – an inquiry that turns on whether, at the time of the shooting, it had been “clearly established” that Mesa’s actions were unconstitutional. For Hernández’s parents, this is a question that is easily answered: “Here,” they stress, “no reasonable officer in Mesa’s shoes will have thought it lawful to open fire on an unarmed civilian posing no threat to no one.” Rather, they argue, Mesa’s conduct “plainly violates even the most permissive standard for exercising deadly force on unarmed civilians—a constitutional norm that has been clearly established for decades.” Under this test, they suggest, the fact that Hernández was not a U.S. citizen carries no weight, because courts should make their determinations based on the information that was available to the official being sued at the time of the challenged conduct. Here, Mesa did not know (and could not have known) whether Hernández was a U.S. citizen.

Not surprisingly, Mesa and the federal government see things very differently. In the government’s view, whether Mesa has immunity hinges on whether a reasonable officer in Mesa’s place “would have known that his actions violated the Fifth Amendment, where the officer did not know Hernández’s nationality with certainty but had no reason to believe he was a U.S. citizen.” If anything, Mesa alleges, he could have reasonably inferred that Hernández was not a U.S. citizen, because he had been “responding to persons attempting to enter the United States by going through the fence” at the U.S.-Mexico border: When Mesa detained one of the individuals who had been trying to cross the border, others in the group, “including Hernández, began to throw rocks at him.”

The final question – which the justices themselves added to the case – is whether Hernández’s parents can bring their suit under the Supreme Court’s 1971 decision in Bivens v. Six Unknown Named Agents, in which the justices ruled that a plaintiff can bring a private federal action for damages against federal officials who allegedly violated his constitutional rights.

For Hernández’s parents, the answer is an emphatic “yes.” This is precisely the kind of case that the justices had in mind when they ruled in Bivens over 40 years ago, they argue: It provides a remedy for an “egregious” violation of Hernández’s constitutional rights and protects the separation of powers by serving as a check on misconduct by the executive branch. Moreover, none of the “special factors” that might counsel against allowing a lawsuit under Bivens is present in this case, they maintain, because their claims do not involve either national security or a negative effect on foreign relations. If they cannot bring this lawsuit, they contend, they will have no recourse at all “for the government’s unjustified killing of an unarmed fifteen-year-old boy.” And that, they allege, would be virtually unprecedented “outside of the unique military context.”

The federal government, on the other hand, urges the court not to extend Bivens to cases, like this one, involving injuries to non-U.S. citizens outside this country. For over three decades, the government reminds the justices, the court has “consistently refused to extend Bivens liability to any new context or new category of defendants,” even when a failure to do so might leave the would-be plaintiff without any recourse at all. This is particularly true, it observes, when Congress has repeatedly declined to enact laws that would allow the kind of lawsuit that Hernández’s parents have filed. And, it adds, this case illustrates the problems that can arise when courts become enmeshed in “this sensitive diplomatic arena.” Although Hernández’s parents point to Mexico’s support for their lawsuit to suggest that they should be able to bring it, the federal government counters that Mexico’s position only proves its own point, which is that courts are “ill-suited” to make judgments about whether a damages remedy should be made available.

Although the federal government has supported Mesa in this litigation, Hernández’s parents have the support of a group of former federal officials from the U.S. Customs and Border Patrol Agency, which filed a brief in the Supreme Court. They paint a gloomy picture, recounting that, as “security along the border has increased, criminal organizations seeking inroads into the United States have attempted to infiltrate the Border Patrol” – sometimes successfully. Between substandard screening procedures and “inadequate field training” on the uses of force, they tell the justices, incidents like the one that led to Hernández’s death “will likely continue if agents cannot be held accountable in civil suits.” Whether these real-world accounts will play a role in the justices’ legal conclusions may become apparent after next week’s oral argument.

Recommended Citation: Amy Howe, Argument preview: Justices take on issues arising out of cross-border shooting, SCOTUSblog (Feb. 14, 2017, 6:16 PM),