Cross-Border Shooting Goes to Supreme Court

     (CN) — The Supreme Court agreed Tuesday to decide whether the family of a Mexican teenager who was fatally shot by a federal agent across the border can sue the agent in U.S. court.
     Fifteen-year-old Sergio Hernandez Guereca was shot and killed by a U.S. Border Patrol agent while he was on Mexican soil in 2010, court records show.
     His family filed a wrongful-death lawsuit against the U.S. government, Border Patrol Agent Jesus Mesa Jr., and his supervisors in 2011.
     The family claimed that Hernandez was playing a game with friends on an inclined culvert separating Mexico from the United States when Mesa fired two deadly shots across the Rio Grande from Texas into Mexico.
     A federal judge in El Paso dismissed the claims against the federal government under the doctrine of sovereign immunity, found that the claims against Mesa’s supervisors failed to establish personal responsibility for the alleged violations, and tossed the claims against Mesa as barred by qualified immunity.
     Hernandez’s family caught a break in 2014, however, when a divided three-judge panel of the Fifth Circuit decided to revive the claims against Mesa.
     That decision emphasized that Hernandez had Fifth Amendment rights even though he was in Mexico at the time of his shooting, but the federal appeals court vacated the opinion in deciding to rehear the case en banc.
     The Fifth Circuit was unanimous last year in finding that the Fifth Amendment violation “was not clearly established to the extent the law requires,” and any Fourth Amendment excessive force claims cannot be asserted because the teen had no “significant voluntary connection” to the United States.
     The unsigned lead opinion noted that the 2014 ruling was accurate in saying that Mesa “showed callous disregard for Hernandez’s Fifth Amendment rights by using excessive, deadly force when Hernandez was unarmed and presented no threat.”
     Such rights however were “not clearly established, under these facts, in 2010,” the Fifth Circuit ruled.
     “We hold unanimously that Agent Mesa has qualified immunity from this suit for a Fifth Amendment substantive due process violation because he did not violate any clearly established rights flowing from that Amendment,” the April 2015 ruling said.
     Hernandez’s family filed a petition for writ of certiorari three months after the Fifth Circuit decision, asking the U.S. Supreme Court to take up the case.
     “The en banc Fifth Circuit in this case concluded that the Constitution affords no protection to an unarmed teenager in a confined area of exclusive U.S. control who was shot to death at close range, without justification, by a U.S. Border Patrol agent standing on U.S. soil,” the petition states. “If left standing, the Fifth Circuit’s decision will create a unique no-man’s land—a law-free zone in which U.S. agents can kill innocent civilians with impunity.”
     The family further argued that the “border with Mexico is not an on/off switch for the Constitution’s protections against the unreasonable use of deadly force.”
     The federal government opposed Supreme Court review of the case in a brief filed earlier this year. It said that Mesa opened fire because Hernandez and others ignored commands to stop throwing rocks at him.
     “Hernandez’s death was tragic. This case, however, is not about the legal standard governing the justifiable application of force, but whether petitioners have alleged that Agent Mesa’s actions were clearly established constitutional violations for which the Court should infer a damages remedy,” Then-Solicitor General Donald Verrilli Jr. wrote for the government. “The United States has instituted criminal proceedings for another cross-border shooting and, although the government declined to extradite Mesa in this particular case, the Mexican courts have jurisdiction over any tort or crime arising from a fatal injury in Mexico.”
     The Supreme Court granted Hernandez’s family’s request for review on Tuesday. It will decide whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, and whether qualified immunity can be granted based on facts unknown to the officer at the time of the incident, like the victim’s legal status.
     In addition, the justices will decide whether the family’s claim against Mesa can be brought under Bivens v. Six Unknown Named Agents, a 1971 Supreme Court decision finding that an implied cause of action existed for a person whose freedom from unreasonable search and seizures was violated by federal agents.
     Per its custom, the high court did not comment on its decision to hear the case.

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