WASHINGTON (CN) – 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.
Mesa was not punished for the shooting, even after video surfaced that contradicted Mesa's claim that Hernandez and his friends were surrounding Mesa and throwing rocks at him.
Mexican authorities have brought charges against Mesa, but the United States declined to the federal agent. In declining to prosecute him itself, the United States says jurisdiction is lacking because Hernandez was not in the United States when he was killed.
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.
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.
Robert Hilliard, an attorney for the Hernandez family, argued Tuesday that Mesa’s conduct is governed by the Constitution, regardless of where the boy he shot was standing.
"No other government could control his actions but our government," said Hilliard, of the Corpus Christie firm Hilliard, Munoz & Gonzales. "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.
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.
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