Cross-Border Shooting Clash Gets U.S. Supreme Court Review

(Bloomberg) -- The U.S. Supreme Court agreed to decide whether the parents of a Mexican teenager can sue the American law enforcement agent who fatally shot the boy from across the border.

The court will hear arguments in the case of Sergio Hernandez, who was shot in 2010 by a U.S. Border Patrol agent standing in Texas. The family is seeking to sue the agent in federal court, claiming their son’s rights under the U.S. Constitution were violated.

The case is making its second trip to the Supreme Court, which in 2017 avoided an apparent divide with a compromise that kicked the case back to a lower court. That argument took place before the arrival of President Donald Trump’s appointees, Justices Neil Gorsuch and Brett Kavanaugh.

Since then, tens of thousands of asylum seekers have arrived at the border, and many have been forced to wait for months on the Mexican side. Violence broke out in November when a peaceful march devolved into chaos and agents fired tear gas into the crowd.

Hernandez, 15, was shot while in a culvert whose center is the international border between El Paso, Texas, and Juarez, Mexico. His parents say Sergio and his friends were playing a game by running up the incline on the U.S. side, touching the fence there and running back into Mexican territory. The border agent, Jesus Mesa, was patrolling the U.S. side of the culvert on a bicycle when he encountered the boys.

No Prosecution

The FBI at one point said the youths were throwing rocks, although Hernandez’s parents say video evidence refutes that account. U.S. officials declined to prosecute Mesa, and President Barack Obama’s administration rejected a request to extradite him to Mexico.

The 2017 Supreme Court case was designed to address whether the Constitution covers a cross-border shooting when the victim is a non-American. The court ducked that question, which it called “sensitive,” and instead told a New Orleans-based federal appeals court to consider a different reason why the family might not be able to sue.

The appeals court then decided the family couldn’t press what is known as a Bivens claim, alleging violation of a constitutional right by a federal officer. That type of lawsuit took its name from a 1971 Supreme Court ruling that let a man sue federal drug-enforcement agents for arresting and searching him even though no federal law explicitly authorized the suit.

The Supreme Court has shown skepticism toward such claims in recent years. A 2017 ruling said that “expanding the Bivens remedy is now a disfavored judicial activity,” and that Bivens shouldn’t be applied in “new contexts.”

Lawyers for the Hernandez family say the shooting isn’t a “new context,” even though it occurred across an international border.

“This case simply involves a federal official engaged in his law enforcement duties acting on United States soil who shot and killed an unarmed 15-year-old boy standing a few feet away,” the family’s appeal argued, quoting an opinion written by a dissenting appellate judge.

The Trump administration urged the Supreme Court to accept the case to clear up lower court disagreement but said the appeals court was right to throw out the Hernandez suit.

“This court has never recognized a Bivens remedy arising from an injury inflicted on a foreign citizen in another country’s sovereign territory,” the administration argued.

The court will hear arguments and rule in the nine-month term that starts in October. The case is Hernandez v. Mesa, 17-1678.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story: Joe Sobczyk at jsobczyk@bloomberg.net, Laurie Asséo, Ros Krasny

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