Supreme Court Takes Up Cross-Border Shooting Case

WASHINGTON (CN) – The Supreme Court agreed Tuesday to consider for the second time a case where a federal agent fired his gun across the border into Mexico, killing an unarmed teenager.

Sergio Hernandez was just 15 when U.S. Border Patrol agent Jesus Mesa Jr. fatally shot him on Mexican soil in 2010.

As recounted in the court’s last ruling on the case, Hernandez and his friends were playing a game in which they ran up the embankment on the United States side, touched the fence, and then ran back down.

Mesa arrived on the scene by bicycle and detained one of Hernandez’s friends on the U.S. side of the embankment. Hernandez ran across the culvert and stood by a pillar on the Mexican side. Mesa fired two shots across the border, one of which struck Hernandez in the face, killing him.

Hernandez’s family seeks damages from Mesa, but the en banc Fifth Circuit has ruled twice now that the agent was entitled to immunity.

The Fifth Circuit looked at the case a second time last year after the Supreme Court demanded further proceedings in light of the fact “that Hernandez’s nationality and the extent of his ties to the United States were unknown to Mesa at the time of the shooting.”

U.S. Circuit Judge Edith Jones wrote the majority last year that Mexico’s interest in extraditing Mesa for criminal charges underscores the foreign-affair issues at play. 

“Diplomatic concerns ‘involve a host of considerations that must be weighed and appraised’ — a sign that they must be ‘committed to those who write the laws rather than those who interpret them,’” Jones wrote.

Hernandez’s lawyers said meanwhile in their new petition for certiorari that the Fifth Circuit's decision was inconsistent with Supreme Court precedent.

Stephen Vladeck from the University of Texas School of Law is counsel of record for the Hernandez family.

Pointing to reports about “the systematic increase in uses of excessive force” by officers with U.S. Customs and Border Protection, Vladeck said that Hernandez’ death is, “unfortunately, not the least bit aberrational.”

“Yet if the Court of Appeals’ analysis is left intact, there will be little deterrent for law enforcement officers in Louisiana, Mississippi, and Texas ... with regard to uses of excessive force,” the petition states.

Mesa’s attorney, Randolph Ortega of the firm Ortega Mcglashan Hicks, has argued meanwhile that the Fifth Circuit got it right since “the Fourth Amendment does not apply to American officers’ actions outside of this country’s borders.”

“Congress has expressly charged the Border Patrol with ‘deter[ring] and prevent[ing] the illegal entry of terrorists, terrorist weapons, persons, and contraband,’” Ortega wrote in an opposition brief. “Although members of the  Border Patrol, like Agent Mesa, may conduct activities analogous to domestic law enforcement, this case involved shots fired across the border within the scope of Agent Mesa’s employment.”

Vladeck and Ortega have not responded to requests for comment. A representative for Customs and Border Patrol declined to comment, citing a policy on pending litigation.

Hernandez’s was the only case granted certiorari in Tuesday’s order list. Among dozens of cases the justices turned down was a challenge about transgender bathroom policies in Pennsylvania.

Students from the Boyertown School District, about 45 miles northwest of Philadelphia, sought a reversal after the Third Circuit upheld a policy that allows transgender students to use bathrooms and locker rooms that correspond with their sexual identity.

Per their custom, the justices did not issue any comment Tuesday in refusing to hear the case. The students are represented by the conservative Christian law firm Alliance Defending Freedom.

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