Supreme Court appears split in case of Mexican teen killed by US agent in cross-border shooting
WASHINGTON — The Supreme Court seemed split Tuesday on whether the family of a Mexican teen killed by a U.S. Border Patrol agent in a cross-border shooting should be awarded damages, with the high court's liberal justices — at times with exasperation — probing the agent's attorney with the same questions.
The liberal justices repeatedly asked Randolph Ortega, who represents the Border Patrol agent, why damages should not be awarded because the teen was standing on the Mexican side of the border, but should be awarded if he was shot a few inches on the United States side.
"So then the question is why, when we just moved three inches over there, there's a different answer? That, I think, is the question that many people have been asking you," Associate Justice Elena Kagan asked Ortega.
"That's correct. And I believe that the border is real. It's a real line. And it can't be extended," Ortega said. "The Constitution cannot be extended into a foreign country."
"Yes, it is a real line," Kagan interjected, adding that one way to draw a line is to "find a real line, I suppose."
At issue is the 2010 shooting death of 15-year-old Sergio Adrian Hernández Guereca and the invisible border between him and the Border Patrol agent who fired the fatal shots. Hernández and his friends were playing in a dry river bed separating El Paso, Texas, from Ciudad Juarez, Mexico. Court records say the game they were playing involved running up the embankment on the U.S. side of the border, touching a fence, then running back down the river bed and toward the Mexico side.
Border Patrol agent Jesus Mesa, Jr., arriving on a bicycle, detained one of Hernández's friends, while Hernández ran across the international boundary into the Mexican side. Standing on the U.S. side, Mesa fired at least two shots across the invisible border, striking Hernandez in the face and killing him.
Mesa's lawyers said he was responding to a group of suspected illegal aliens throwing rocks at Border Patrol agents. Cellphone videos appeared to show Hernandez hiding beneath a train trestle when he was shot. Hernandez, according to court records, was unarmed.
The boy's family sued, arguing the Border Patrol agent used excessive force. The lawsuit relied on a 1971 case in which the Supreme Court said a homeowner can sue federal agents who forced their way into his home without a warrant. Judges have since expanded on that five-decade-old precedent and allowed lawsuits against other federal officials to move forward.
The family's lawsuit was dismissed. Lower courts ruled that Hernández did not have constitutional protection against unreasonable use of deadly force under the Fourth Amendment, as well as due process rights under the Fifth Amendment, because he was standing on Mexican soil when he was shot.
Tuesday's oral argument was the second time the Supreme Court heard the case, which first reached the high court in 2017. The case had been watched closely in part because of President Donald Trump's fledgling effort to build a wall along the U.S.-Mexico border.
The Supreme Court previously ruled that the Border Patrol agent was not entitled to immunity, calling the shooting "a disturbing incident resulting in a heartbreaking loss of life." But the justices also punted some of the key issues, including the Fourth Amendment question, back to the U.S. Circuit Court of Appeals for the Fifth Circuit, which, again, dismissed the case.
Last year, Hernandez's family asked the Supreme Court to weigh in again.
The question now before the Supreme Court is whether Hernandez's family should be awarded damages because his case is no different from that 1971 case. Another is whether Hernández lacks constitutional protection because he was in Mexico, as lower courts have ruled, or whether Mesa is liable because the gun was fired in the United States.
Stephen Vladeck, who represents the teen's family, said the 1971 case provides protection against overreach of rogue law enforcement officers, and the deterrent effect of that precedent "could quite easily be lost" if it's not applied to Hernandez's case.
"Distilled to its simplest, the government's position in this case is that officers in what is self-described as the nation's largest law enforcement agency should have a functional absolute immunity, at least where foreign nationals are concerned," Vladeck said.
Chief Justice John Roberts, along with Associate Justices Neil Gorsuch and Samuel Alito, seemed unconvinced.
Roberts noted that the precedent Vladeck is relying on was decided nearly 50 years ago, and the Supreme Court has not used the 1971 case to award damages to someone in the last four decades.
Gorsuch questioned why the 1971 case applies only to a law enforcement officer, and not in other governmental actions that result in injuries to foreign nationals abroad.
"If you're not willing to draw that line, where is it? And how is this court supposed to draw it?" Gorsuch asked Vladeck.
Jeffrey Wall, the Justice Department's principal deputy solicitor general, and Ortega, the Border Patrol agent's attorney, both argued that the death of a foreign national on foreign soil does not trigger Fourth Amendment protections. The case, they said, also touched on foreign affairs and national security concerns, both of which are under the domain of the executive branch. A ruling against the Border Patrol agent, and by extension, against the government, would "directly undermine the credibility of the executive branch in working with the federal government," Wall said.
The liberal justices, however, questioned what foreign affairs or national security issues are at stake.
Associate Justice Ruth Bader Ginsburg asked how "using excessive force to kill a child" calls into question national security policies.
Ortega said awarding damages to Hernandez's family "would create a chilling effect" on Border Patrol agents' day-to-day activities. It also would "create chaos" relative to the lower courts' application of the 1971 case, Ortega said.
"Why — why chaos? I guess I'm not seeing that ... I guess the chaos argument's not resonating with me," said Associate Justice Brett Kavanaugh, who appeared to be the only conservative justice to show skepticism of the government's arguments. Associate Justice Clarence Thomas did not speak.
The Supreme Court on Tuesday also heard a case involving the Trump administration's plan to end the Deferred Action for Childhood Arrivals, or DACA, program.
Contributing: Richard Wolf