The US Supreme Court has issued a ruling in the case of a border patrol agent who shot and killed a Mexican boy across the border a decade ago. The court ruled 5-4 in favor of the agent, finding that court precedent allowing lawsuits against federal officers do not apply to cross-border shootings.
At the U.S.-Mexico border in 2010, three Mexican boys were playing a game of “chicken” by seeing who would run the closest to the border. Fifteen-year-old Sergio Hernandez crossed the border, and border patrol agent Jesus Mesa Jr. noticed him.
As Hernandez ran back into a culvert between the walls on either side of the border, the agent fired two shots, one of which struck Hernandez in the face and killed him.
Mesa claimed the boys were engaged in an illegal border-crossing attempt, and also that they were throwing rocks at him.
The Justice Department conducted an investigation of the incident and found that, while expressing regret over the boy’s death, Mesa had not violated policy or training, and the DOJ declined to bring charges against him.
Mexico requested that Mesa be extradited for the killing, but the Obama administration refused. Hernandez’s family sued for damages, claiming that the Fourth Amendment protects against such use of force on the border.
The Supreme Court had begun hearing oral arguments in the case during February 2017, and at that time declined to rule on the case. Oral arguments began again during November 2019.
The Fourth Circuit had dismissed the case, saying, “the plaintiffs fail to allege a violation of the Fourth Amendment, and that the Fifth Amendment right asserted by the plaintiffs was not clearly established at the time of the complained-of incident.” That court also ruled that as a Mexican citizen on Mexican soil, Hernandez was not entitled to Fourth Amendment protection.
In the 1971 opinion Bivens v. Six Unknown Fed. Narcotics Agents, the Supreme Court held that a person claiming to be the victim of an unlawful arrest and search could bring a Fourth Amendment claim for damages against the responsible agents even though no federal statute authorized such a claim.
However, the Supreme Court declined to extend that precedent to the current case for several reasons, one of which was the potential effect on foreign relations.
A “cross-border shooting is by definition an international incident,” Justice Samuel Alito wrote in the court’s opinion, adding that the executive and legislative branches, rather than the judicial branch, ought to be entrusted with matters related to foreign relations.
He also wrote that “since regulating the conduct of agents at the border unquestionably has national security implications, the risk of undermining border security provides reason to hesitate before extending Bivens into this field.”
Justice Clarence Thomas noted in a concurring opinion that the Bivens case may have been wrongly decided in the first place.
Justice Ruth Bader Ginsburg dissented, writing that the parents’ lawsuit does not endanger border security or U.S. foreign policy, and opining that the majority rejected the family’s Fourth and Fifth Amendment claims only because Hernandez happened to be on the Mexican side when he died.
The Border Patrol drastically changed its use of force policies in the years after the shooting, following several complaints of excessive force, the Associated Press reports.