The Obama and Trump administrations both agreed that a U.S. border agent should not be held liable for the death of a young Mexican killed along the border.
The Supreme Court also agreed on Tuesday with a ruling that the family of a Mexican teen who was shot and killed by a border patrol agent outside the country cannot pursue a claim of damages against the officer.
The top court justices ruled 5-4 that a “Bivens” claim cannot be extended to this case where there would be serious foreign affairs and national security consequences. The Bivens doctrine gave private citizens the implied right to sue a federal officer, acting under federal authority, who had violated the Constitution for damages. The doctrine came out of the 1971 Supreme Court case Bivens v. Six Unknown Named Agents.
In the case at hand, cited as Hernandez v. Mesa, U.S. border patrol agent Jesus Mesa shot and killed Sergio Adrián Hernández Güereca, a 15-year-old Mexican national, in June 2010. The family and Mesa have disputed what the 15-year-old was doing at the time that led to the shooting. According to the family, Hernandez was playing with a group of friends on the Mexican side of a cement culvert that separates El Paso, Texas, from Ciudad, Mexico. The alleged game required the teens to run up the embankment on the United States side, touch the fence, and run back down to the Mexican side.
The U.S. believed he was part of a gang trying to illegally cross the border.
In Mesa’s version of the facts, Hernandez and the other teens were part of an illegal border crossing attempt. After Mesa arrived at the scene, he detained one of Hernandez’s accomplices, while the rest, including Hernandez, fled back to the Mexican side.
VIDEO: 2017 interview explains case
An FBI investigation found that the group of teens then began attacking Mesa with rocks. Mesa gave verbal commands to the teens to “stop and retreat” but they continued to throw rocks at the agent. While on the U.S. side, Mesa then fired his weapon at least twice across the border, striking and killing Hernandez, who was in Mexican territory.
The Justice Department also conducted an investigation finding that there was insufficient evidence to prosecute Mesa for homicide offenses and that he “did not act inconsistently with CBP policy or training regarding use of force.”
Mexico was not satisfied with the U.S. investigation and had requested Mesa to be extradited to face criminal charges in a Mexican court. The United States has denied that request.
Hernandez’s parents subsequently sued for damages at the district court claiming that Mesa had violated their son’s Fourth and Fifth Amendment rights. The district court dismissed the case, and the 5th U.S. Circuit Court of Appeals affirmed the decision. The family then appealed the decision to the Supreme Court.
Scholars have contended a widely accepted view that the U.S. Constitution cannot apply to foreign citizens in another country.
This court then vacated the lower court’s decision and sent the case back to the lower courts for further consideration, in light of a related case about governmental immunity. The 5th Circuit affirmed the decision to dismiss the case, refusing to recognize a Bivens claim for the cross-border shooting.
In May, the Supreme Court again agreed to take up the case to consider whether the family could make a claim of damages against Mesa under a Bivens claim.
In the majority opinion (pdf), Justice Samuel Alito wrote that the Bivens doctrine cannot be expanded to a new context of a cross-border shooting that impinges on foreign relations.
“A cross-border shooting is by definition an international incident; it involves an event that occurs simultaneously in two countries and affects both countries’ interests. Such an incident may lead to a disagreement between those countries, as happened in this case,” he wrote.
He said the Executive Branch, who plays the lead role in foreign policy, had already taken the position that Mesa should not face charges in the United States nor be extradited to stand trial in Mexico. Meanwhile, Mexico has taken a different approach and has asked for Mesa’s extradition.
“Both the United States and Mexico have legitimate and important interests that may be affected by the way in which this matter is handled,” he continued. “It is not our task to arbitrate between them.”
“In the absence of judicial intervention, the United States and Mexico would attempt to reconcile their interests through diplomacy—and that has occurred,” he wrote.
The court also found that the extension of the Bivens doctrine could risk border security, where applying the principle could “interfere with the system of military discipline created by statute and regulation.”
Alito was joined by the court’s four conservative justices, Chief Justice John Roberts and Justices Brett Kavanaugh, Neil Gorsuch, and Clarence Thomas.
Meanwhile, Justice Ruth Bader Ginsburg wrote the dissent for three of her liberal colleagues—Justices Sonia Sotomayor, Elena Kagan, and Stephen Breyer—disagreeing with the majority’s reasoning.