If, while being attacked with rocks by smugglers, a U.S. Border Patrol agent accidentally shoots a young child who’d allegedly been “playing” near the southern border, is he liable? This is a question that the Supreme Court will be reviewing soon for the second time in only two years.
The case concerns Sergio Adrián Hernández Güereca, a 15-year-old Mexican boy who was killed on the Mexican side of the border in 2010 by Border Patrol agent Jesus Mesa.
The boy’s family has long claimed that, as he and his friends were playing along the southern U.S. border near El Paso, Paso, Mesa showed up and tried to detain them. Güereca allegedly tried fleeing, so Mesa fired at him once, hitting him in the head and killing him.
Both Mesa and the Department of Justice have denied these allegations, with the Border Patrol agent claiming he’d fired his gun after being hit with rocks thrown by what he thought were smugglers.
Following Güereca’s death, federal prosecutors reportedly declined to bring charges against Mesa. This, in turn, spurred the Mexican government into demanding that the Obama administration allow him to be extradited to Mexico. The administration refused.
This left the deceased teen’s family with one option: To try to sue for civil damages. The Mexican government has come out in support of this suit.
“When agents of the United States government violate fundamental rights of Mexican nationals and others within Mexico’s jurisdiction, it is a priority to Mexico to see that the United States has provided adequate means to hold the agents accountable and to compensate the victims,” it said in legal briefs last year.
However, the lawsuit has been repeatedly denied by several courts.
“At issue is a Supreme Court precedent that allows private individuals to sue federal employees for constitutional violations in specific instances,” the Corpus Christi Caller-Times notes.
“In this case, it depends on whether Hernández lacks constitutional protection because he was in Mexico, as lower courts have consistently ruled, or whether Mesa is liable because the gun was fired in the United States.”
Hernandez v Mesa: Whether a federal border agent can be sued for fatally shooting a Mexican teen on foreign soil while agent was in US.
US Supreme Court granted certiorari on this sole issue below. The Government of Mexico & the United States have filed (opposing) amicus curiae: pic.twitter.com/49IBFJG6gn
— Emily Compagno (@EmilyCompagno) May 28, 2019
When the case first appeared in the Supreme Court two years ago, the court punted it back to lower courts for further reviews. Three judges dissented — Justice Clarence Thomas on the grounds that Mesa deserved to be cleared, and Justices Ruth Bader Ginsburg and Stephen Breyer on the grounds that Güereca deserved constitutional protections.
The case has now returned to the high court because once again the lower courts have arrived at a stalemate, according to the Caller-Times: “The U.S. Court of Appeals for the Fifth Circuit dismissed the claim for damages against the agent, but a Ninth Circuit appeals court came to the opposite conclusion in another cross-border shooting.”
That other shooting involved 16-year-old Jose Antonio Elena Rodriguez , who was killed on the Mexican side of the border in 2012 after being hit 10 times from bullets fired by a U.S. Border Patrol agent.
“The Border Patrol agent in that case, Lonnie Swartz, has been acquitted twice. …,” the Houston Chronicle notes. “Prosecutors said last year they would not seek a third trial. The teen’s family sued for damages, and lower courts let the lawsuit go forward.”
Because of this ruling, on Tuesday the high court agreed to review Güereca’s case again. The case is No. 17-1678 Hernandez v. Mesa.
#SCOTUS will review Hernandez v. Mesa, which asks whether the family of a Mexican teen killed by a U.S. Border Patrol agent in a cross-border shooting can sue the officer for damages
— SCOTUSblog (@SCOTUSblog) May 28, 2019
It should be noted that what actually transpired in 2010 — whether Güereca was killed while fleeing, or whether he was killed because Mesa had mistaken him for a rock-throwing smuggler — is wholly irrelevant to the current case. All that matters is whether the justices believe Güereca has constitutional protections.
While Justices Thomas, Ginsburg and Breyer will likely arrive at the same conclusion they did last time, it remains unclear how the other justices — particularly Justice Brett Kavanaugh, who was confirmed after the first vote in 2017 — will rule this time going forward.
Solicitor General Noel Francisco has argued that allowing such suits to go forward could damage the government’s ability to carry out its national security functions.
“Imposing damages liability on individual agents carrying out that important national security function could undermine the Border Patrol’s ability to perform duties essential to national security by increasing the likelihood that Border Patrol agents will hesitate in making split-second decisions,” he said in recent court filings.
Güereca’s family feels otherwise.
“There’s no question that border safety is important in this country, and all this case does is, it prevents the border from becoming the wild west by preventing, hopefully, Border Patrol agents from subjectively determining that they want to shoot across the border at innocent Mexican nationals,” the family’s lawyer, Bob Hilliard, said to the Caller-Times.
He also complained about the Obama administration’s refusal to extradite Mesa.
“The dangerous precedent that was being set by the U.S. government was that Border Patrol agents had a right to shoot into Mexico with their boots on American soil and claim that the United States Constitution did not apply to any deadly force that they may exercise or may choose to exercise.”
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