SCOTUS Rules: Family of Teen Killed in Cross-Border Shooting Can’t Sue Border Patrol Agent

Chivis Martinez Borderland Beat

In 2010 15 year old Serio Adrian Hernandez Guereca was shot and killed by CBP agent Jesus Mesa.  Agent Mesa says he was responding to a call that there was an illegal border crossing occurring.  

Mesa shot Hernandez from the U.S. side of the border into Mexico, as Hernandez was playing a game that included running into the U.S. territory.

Hernandez’ parents want to sue for the death of their child, but   The Supreme Court ruled Tuesday that agent Mesa cannot be litigated against for the shooting.

The conservative majority SCOTUS overruled the liberal minority in a 5-4 decision.

The case “Hernandez v. Mesa”, was heard by the Court in 2017 before being sent back to a federal appeals court.

The dissenting vote was argued by Justice Ruth Bader Ginsburg  stressing that the concern with international law and national security should not apply because Mesa shot from the US side of the border.

“Neither U. S. foreign policy nor national security is in fact endangered by the litigation.  Moreover, concerns attending the application of our law to conduct occurring abroad are not involved, for plaintiffs seek the application of U. S. law to conduct occurring inside our borders.” Stated Ginsburg in her dissent.
 

The case was filed based on a 1971 case; Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, in which the Supreme Court ruled, a homeowner could sue federal agents under the Fourth Amendment for any search without a warrant. But the supreme court majority decided not to apply Bivens in the Hernandez case.

“The court reasoned that such an incident presents a ‘new context’ and that multiple factors, including the incident’s relationship to foreign affairs and national security, the extraterritorial aspect of the case, and Congress’s ‘repeated refusals’ to create a damages remedy for injuries incurred on foreign soil, counseled against an extension of Bivens,” said Justice Samuel Alito.

Justice Clarence Thomas, and Justice Neil Gorsuch, wrote a like-minded  opinion arguing  “the time has come to consider discarding the Bivens doctrine altogether.”

“Federal courts lack the authority to engage in the distinctly legislative task of creating causes of action for damages to enforce federal positive law,” Thomas said. “We are exercising legislative power vested in Congress.”

Ironically, if the teen had been killed on US soil the parents would be able to sue.

   Border Patrol Supreme Court Decision Hernandez Shooting by Chivis Martinez on Scribd