Supreme Court to Consider if Cross-border Shooting Can Lead to Damages Claim

May 29, 2019 Updated: May 30, 2019

WASHINGTON—The Supreme Court agreed on May 28 to consider whether the parents of a foreigner killed outside the country by a U.S. law enforcement officer can pursue a claim for damages against the officer.

The much-litigated case, Hernandez v. Mesa, is expected to proceed to oral arguments before the high court in the fall.

U.S. Border Patrol agent Jesus Mesa shot and killed Mexican national Sergio Hernandez, 15, on June 7, 2010. Hernandez had been playing with his friends on the Mexican side of a concrete culvert that marks the boundary between Ciudad Juarez in the state of Chihuahua, Mexico, and El Paso, Texas. The game the teenager was playing involved running up a steep embankment to the border fence on the U.S. side, touching the fence, and then running back to the Mexican side.

According to the FBI, Mesa was performing his duties when a group of young males began hurling rocks at him. Mesa grabbed one of the youths and, as he was holding him, aimed at the others and fired twice, killing Hernandez, who was several yards away in Mexican territory. The U.S. Department of Justice found that no Border Patrol policies had been violated by Mesa and declined to prosecute him.

Lower courts threw out the claims of the Hernandez family.

A divided 5th U.S. Circuit Court of Appeals held that the family couldn’t pursue a claim that the young man’s constitutional rights were violated because Hernandez, who lacked familial or other ties to the United States, was a Mexican citizen present on Mexican soil at the time of the shooting.

The family appealed to the Supreme Court, which agreed to hear the case. In 2017, the Supreme Court sent the case back to the 5th Circuit for reconsideration, in light of a decision the high court rendered in a related case about governmental immunity.

On March 19, the 5th Circuit upheld the lower courts’ dismissal of the case and refused to expand the ability of the plaintiffs to sue Mesa.

On May 28, the Supreme Court agreed to consider the case again to determine if the plaintiffs, who claim Mesa was a rogue federal law-enforcement officer, can pursue the officer in a so-called Bivens action. The circuit court specifically didn’t consider the applicability of a Bivens claim.

A Bivens action refers to a lawsuit for damages when a federal officer, acting under federal authority, violates the U.S. Constitution. The plaintiffs must prove federal officers have violated a constitutionally protected right.

The term “comes from Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), in which the Supreme Court held that a violation of one’s Fourth Amendment rights by federal officers can give rise to a federal cause of action for damages for unlawful searches and seizures,” according to the Legal Information Institute.

Attorney Bob Hilliard, who represents the family, praised the Supreme Court’s decision to hear the case again.

“The justices knew that they must once again tackle this issue head-on, and it appears they have decided that this time, it’s time,” Hilliard, of the Texas-based law firm Hilliard Martinez Gonzales, said in a press release.

“The 5th Circuit’s circuitous opinion offers no clarity or consistency for either side—and the deadly practice of agents, standing in the United States and shooting innocent kids across the border must be stopped. It’s never right. It’s never constitutional. This is one of those times when morality and our U.S. Constitution line up perfectly.”

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