Supreme Court Struggles Over Cross-Border Shooting

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Kevin Daley Supreme Court correspondent
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The Supreme Court struggled over a case implicating a U.S. Border Patrol agent in the cross-border shooting of a Mexican national in the border zone near El Paso, Texas during oral arguments on Tuesday.

The case concerns Agent Jesus Mesa, Jr., who discharged his service weapon while standing in the United States and killed 15-year-old Sergio Adrian Hernandez Guereca, a Mexican national who was standing on Mexican soil, in July of 2010. Lower courts have prevented the Hernandez family from suing Agent Mesa.

The Hernandez family claims Mesa’s action violated the Fourth Amendment’s prohibition on the unjustified use of deadly force. Mesa and the U.S. government claim the Fourth Amendment does not apply against foreign nationals standing on foreign soil. They further contend Mesa is entitled to qualified immunity, or protection from civil suits afforded to federal officials when they are acting in their official capacity.

The Hernandez’s attorney, Robert Hilliard, argued certain constitutional provisions should apply in the border zone between the United States and Mexico, allowing the family to bring an action against Mesa. The justices asked Hilliard to provide a theory governing how the Constitution should apply in the border zone generally in future cases, a task with which he struggled.

Hilliard said the Fourth Amendment should apply if a federal law enforcement officer kills a foreign national on foreign soil in close proximity to the border.

“Well, that’s a test that, surprisingly, fits the exact facts of your case,” Chief Justice John Roberts replied, soliciting laughter from the courtroom.

Roberts later asked if Hilliard’s position allowed foreign nationals to sue federal officials for drone strikes overseas.

“How do you analyze the case of a drone strike in Iraq where the plane is piloted from Nevada?” he asked. “Why wouldn’t the same analysis apply in that case?”

Justice Stephen Breyer was intensely interested in establishing a theory governing cross-border shootings, but expressed frustration with Hilliard’s failure to articulate general rules for the future.

“And so just please, if there’s anything else you have to say, I think you don’t have anything else to say, but if you do, I would say this is a good time to say it,” he told Hilliard.

Breyer argued certain constitutional provisions should apply in the zone where Hernandez was killed. The teenager was in a ditch, called a culvert, separating the two countries when he was shot. The culvert, Breyer said, was jointly administered between the two countries.

“We also have a treaty that says there will be a line down the middle of the culvert, but the culvert will be maintained by Mexico and the United States jointly,” he said. “So it has not taken place in a foreign country.”

Two attorneys, Deputy Solicitor General Edwin Kneedler and Randolph Ortega, defended Mesa at the argument. During their presentation, Justice Ruth Bader Ginsburg asserted the border issue was tangential, because U.S. laws constrain actors, without reference to location.

“The law of the United States is directed to an actor,” she said. “The actor is the Border Patrol member. And the instruction from the United States is very clear: Do not shoot to kill an unarmed, non-dangerous person who is no threat to your safety.”

“So I don’t understand all this about Mexico,” she added. “It’s the United States law operating on the United States official who’s acting inside the United States.”

Prior to Tuesday’s argument, the justices asked the parties if the Hernandez family could bring an action against Mesa under Bivens v. Six Unknown Agents, which allows courts to award damages for egregious constitutional violations by federal officials.

Justice Anthony Kennedy, whose vote will likely determine the outcome of the case, appeared skeptical Bivens should apply in this case, because the Court has declined to extend it to new classes of plaintiffs, especially where doing so might infringe on separation of powers.

“You’ve indicated that there’s a problem all along the border,” Kennedy said to Hilliard. “Why doesn’t that counsel us that this is one of the most sensitive areas of foreign affairs where the political branches should discuss with Mexico what the solution ought to be?”

A decision in this case will likely come in June, when the justices tend to issue their most controversial opinions.

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