SUPREME COURT TO REVIEW LAWSUIT AGAINST BORDER PATROL AGENT
Oral argument in Hernández v. Mesa set for Tuesday, February 17

The U. S. Supreme Court will hear oral argument Tuesday on a federal lawsuit seeking to hold a U. S. Border Patrol agent personally liable for the shooting of a Mexican juvenile.

The question before the Court in Hernández v. Mesa is whether parents who are Mexican citizens have the right to sue a U. S. law enforcement officer for an incident on the Mexican side of the U. S.-Mexico border, which resulted in the death of their 15-year-old son who was also a Mexican citizen living in Mexico.

The California-based Criminal Justice Legal Foundation has joined the case to encourage the Supreme Court to reject the lawsuit, arguing that under the circumstances of the case there is no legal authority for the trial court to consider it.

The case involves the death of 15-year-old Sergio Adrian Hernández Guereca on June 7, 2010. On that day, Hernández and several others were hanging around a cement culvert that separates El Paso, Texas, from Mexico. The border runs along the center of the culvert with a fence along the embankment on the U. S. side. The plaintiffs claim that Hernández and his friends were playing a game where they would run up the side of the culvert, touch the fence, and run back. When Border Patrol Agent Jesus Mesa Jr. arrived at the scene, he caught one of Hernández’s friends on the U. S. side of the culvert. Then while standing on the U. S. side, Mesa shot and killed Hernández as he was watching from the Mexican side.

A subsequent U. S. Department of Justice investigation found that Hernández was known by law enforcement for illegally smuggling people across the border. On the day of the shooting, Agent Mesa caught a suspect attempting to cross the border at the El Paso culvert. Seeing this, Hernández and his friends began pelting him with rocks at close range and, in response, Agent Mesa fired his weapon killing Hernández.

In their lawsuit, Hernández’s parents argue that their sons’s constitutional rights were violated, and thus they are entitled to sue and hold Agent Mesa personally liable for excessive force resulting in the death of their son. They cite a 1971 Supreme Court ruling in Bivens v. Six Unknown Federal Narcotics Agents for support. The Bivens ruling allowed a U. S. citizen whose home was searched without a warrant, before he was arrested, strip searched, and interrogated on an unsubstantiated narcotics violation, to sue federal authorities for damages.

In a scholarly amicus curiae (friend of the court) brief, Foundation attorney Kymberlee Stapleton argues that Bivens should not be extended to give foreign citizens with no ties to the U. S. a right to sue a federal agent for an act that occurred in a foreign country. In fact, in its 2001 decision in Correctional Services Corporation v. Malesko, the Court noted that it had “consistently refused to extend Bivens liability to any new context or new category of defendants.” The CJLF brief also argues that Congress has expressly prohibited recovery for tort claims against the government that arise in a foreign country due to a federal official’s misconduct.

Among the other organizations which filed briefs supporting the plaintiffs (Hernández) in this case are the American Civil Liberties Union, Amnesty International, the Constitutional Accountability Center, and the American Immigration Council.

“Congress, not the judiciary, is the proper branch to decide if noncitzens can recover money damages for tortuous government conduct occurring in a foreign country,” said Stapleton. “A decision to allow this lawsuit would permit the family of an alien with no ties to the U. S., who was likely engaging in criminal activity, to force a border patrol agent into litigation over an incident that has been investigated by the Department of Justice and would chill the enforcement of America’s border security,” she added.