From [HERE] and [HERE] Hinting that it will rule against the family of a Mexican child gunned down on his side of the border by a U.S. border patrol agent, the Supreme Court voiced concern Tuesday that a reversal will flood the courts with claims related to foreign drone strikes.
“Our problem, but we have to have your help in solving it, is you have a very sympathetic case,” Justice Stephen Breyer said during oral arguments on Tuesday. “We write some words, and those words you’re delighted with because you win. That isn’t the problem. The problem is other people will read those words, and there are all kinds of things that happen, maybe military, maybe not.”
The case comes from the death in Mexico of Sergio Hernandez, a 15-year-old boy who was playing in Mexico when he was fatally shot by U.S. Border Patrol Agent Jesus Mesa, who had been standing in Texas across the Rio Grande.
The cellphone video is vivid. A Border Patrol agent aims his gun at an unarmed 15-year-old some 60 feet away, across the border with Mexico, and shoots him dead.
The shooting took place on the border between El Paso, Texas, and Juárez, Mexico.
The area is about 180 feet across. Eighty feet one way leads to a steep incline and an 18-foot fence on the U.S. side — part of the so-called border wall that has already been built. An almost equal distance the other way is another steep incline leading to a wall topped by a guardrail on the Mexican side.
In between is a the dry bed of the Rio Grande with an invisible line in the middle that separates the U.S. and Mexico. Overhead is a railroad bridge with huge columns supporting it, connecting the two countries.
In June 2010, Sergio Hernández and his friends were playing chicken, daring each other to run up the incline on the U.S. side and touch the fence, according to briefs filed by lawyers for the Hernández family.
At some point U.S. border agent Jesus Mesa, patrolling the culvert, arrived on a bicycle, grabbed one of the kids at the fence on the U.S. side, and the others scampered away. Fifteen-year-old Sergio ran past Mesa and hid behind a pillar beneath the bridge on the Mexican side.
As the boy peeked out, Agent Mesa, 60 feet or so away on the U.S. side, drew his gun, aimed it at the boy, and fired three times, the last shot hitting the boy in the head.
Although agents quickly swarmed the scene, they are forbidden to cross the border. They did not offer medical aid, and soon left on their bikes, according to lawyers for the family.
A day after the shooting, the FBI's El Paso office issued a press release asserting that agent Mesa fired his gun after being "surrounded" by suspected illegal aliens who "continued to throw rocks at him."
Two days later, cellphone videos surfaced contradicting that account. In one video the boy's small figure can be seen edging out from behind the column; Mesa fires, and the boy falls to the ground.
"The statement literally says he was surrounded by these boys, which is just objectively false," says Bob Hilliard, who represents the family. Pointing to the cellphone video, he says it is "clear that nobody was near " agent Mesa.
In one video, a woman's voice is heard saying that some of the boys had been throwing rocks, but the video does not show that, and by the time the shooting takes place, nobody is surrounding agent Mesa.
In other words, this race soldier cop murdered a teenager for no reason and then lied about it.
The U.S. Department of Justice decided not to prosecute Mesa. Among other things, the department concluded that it did not have jurisdiction because the boy was not on U.S. soil when he was killed.
Mexico charged the agent with murder, but when the U.S. refused to extradite him, no prosecution could go forward.
U.S. Customs and Border Patrol did not discipline agent Mesa — a fact that critics, including high-ranking former agency officials, say reflects a pattern inside the agency.
The parents of the slain boy, however, have sued Mesa for damages, contending that the killing violated the U.S. Constitution by depriving Sergio Hernández of his life.
Previously, Hernandez’s family brought a civil rights suit against Mesa in Texas, but a federal judge tossed out the claim, saying the protections within the Fourth Amendment against use of deadly force do not extend across the border.
"I can't believe that this is allowed to happen — that a Border Patrol agent is allowed to kill someone on the Mexican side and nothing happens," Sergio's mother, Maria Guadalupe Güereca Betancour, says through an interpreter.
As the case comes to the Supreme Court, there has been no trial yet and no court finding of facts. Mesa continues to maintain that he shot the boy in self-defense after being surrounded by rock-throwing kids.
The Supreme Court took up the case last year after the Fifth Circuit affirmed. It has agreed to resolve the Fourth Amendment issue as well as the Hernandez family deserves relief under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, a 1971 case that allowed individuals to bring certain constitutional claims against federal officers.
The only question before the Supreme Court centers on whether the Hernández family has the right to sue. A divided panel of the 5th Circuit Court of Appeals concluded that no reasonable officer would have done what Agent Mesa did, and that therefore the family could sue.
However, the full court of appeals reversed that judgment, ruling that because the Hernández boy was standing on the Mexico side of the border and was a Mexican citizen with no ties to the United States, his family could not sue for a violation of the U.S. Constitution. Moreover, the appeals court said that even if the facts as alleged by the Hernández family are true, Mesa is entitled to qualified immunity, meaning he cannot be sued because there is no clearly established body of law barring his conduct.
Lawyers for the Hernández family counter that Supreme Court precedents establish a practical approach in determining whether there is a right to sue for the use of excessive force in circumstances like these. Lawyer Hilliard says yes, the boy was across the border when the shots were fired, but by just 60 feet.
"This is a domestic action by a domestic police officer standing in El Paso, Texas, who is to be constrained by this country's Constitution," Hilliard contends. "There's a U.S. Supreme Court case that says a law enforcement officer cannot seize an individual by shooting him dead, which is what happened in this case."
Hilliard argues that if you follow the Border Patrol's argument to its necessary conclusion, "it means that a law enforcement officer is immune to the Constitution when exercising deadly force across the border.
“No other government could control his actions but our government,” said Hilliard. “And while inside the United States, under his own Constitution, which he was sworn to abide by, he shoots.”
Hilliard recommended that the court craft a narrow opinion specific to close-range shootings of foreign nationals at the border.
“The intent of our rule is simply to involve this court in addressing an ongoing domestic routine law enforcement issue along our southwest border,” Hilliard said.
"He could stand on the border and target practice with the kids inside the culvert," Hilliard warns.
Distinguishing his clients’ case from those that would come after a drone strike, Hilliard said drone strikes happen across greater distances and with the cooperation of the government in which the killings occur. Breyer was unclear, however, on how he could craft those differences into a clear rule.
“When I write the reason for that,” he said, “I write the opinion just as you said it, and it says, ‘But if it’s only 30 feet away, then the Bivens actions in the Fourth Amendment apply. But if it’s 30 miles away or 300 miles, they don’t.’ OK? That’s what you want me to write. Now, the next sentence has to have the reason why I drew that distinction and that’s what I think people have been looking for.”
While it was clear the justices were concerned about ripple effects, they did not seem to completely buy the claim by Mesa’s attorney that the protections of the Constitution necessarily stop at the border.
Randolph Ortega, of the El Paso firm Oretega McGlashan Hicks & Perez, struggled to distinguish the case from the Supreme Court’s ruling in Boumediene v. Bush, which held that detainees held at Guantanamo Bay could go forward with habeas petitions despite not being citizens of the United States.
Boumediene says the Constitution applies despite the detainees’ citizenship because the United States holds complete control of Guantanamo Bay, and Ortega argued that the United States does not exercise control past the border that runs through the center of the culvert in which Hernandez died.
“Wars have been fought to establish borders,” Ortega said. “The border is very real.”
But some of the liberal justices questioned whether the United States’ power actually stops at the border or whether the area central to this case, with a busy border crossing nearby and unique structures, is different. In addition, they said, the laws of the United States were clearly governing Mesa when he fired the deadly shot.
“It’s the United States law operating on the United States official who’s acting inside the United States,” Justice Ruth Bader Ginsburg said. “This case has, as far as the conduct is concerned, United States written all over it.”
Deputy Solicitor General Edwin Kneedler told the justices that Congress or the executive branch, not the courts, should be the ones to set up a way for the Hernandez family to be made whole.