With security at the U.S.-Mexico border at the center of a seething controversy, the justices of the U.S. Supreme Court seemed torn at oral arguments on Tuesday — torn between their sense of justice and legal rules that until now have protected U.S. Border Patrol agents from liability in cross-border shootings.
In the summer of 2010, 15-year-old Sergio Hernández and his friends were playing chicken, daring each other to run up to the border fence between Juárez, Mexico, and El Paso, Texas. Border Patrol Agent Jesus Mesa Jr. arrived on the scene and grabbed one of the kids, while others ran past him, crossing the invisible border into Mexico and hiding behind a railroad trestle. Cellphone videos show Sergio peeking out from his hiding place, as agent Mesa points his gun and fires three shots, killing the unarmed boy 60 feet away.
After an investigation by U.S. Customs and Border Protection, Mesa was neither prosecuted nor disciplined. Mexico charged him with murder, but the U.S. refused to extradite him. So the dead boy's parents sued agent Mesa for damages, claiming that he had acted in violation of the U.S. Constitution by killing their son.
On the steps of the Supreme Court Tuesday, agent Mesa's lawyer, Randolph Ortega, said the Constitution does not extend across the Mexican border.
"Borders are real and finite, and borders determine where the primacy of one country ends and the other begins," Ortega said.
Bob Hilliard, the lawyer representing Hernández's family, countered that the roughly 44,000 Border Patrol agents are domestic law enforcement officers who should be constrained by the Constitution.
"Right now, while they're in the United States, their boots never leave the country, and it's the government's position that the Constitution turns off like a light switch at the border, and they are unconstrained by our U.S. Constitution," said Hilliard.
Inside the Supreme Court chamber, Hilliard had some difficulty selling his counterargument to the court's four conservative justices.
"How do you analyze the case of a drone strike in Iraq where the plane is piloted from Nevada?" Chief Justice John Roberts asked. Could the family of those who are killed or injured sue for damages?
Hilliard fumbled, until Justice Ruth Bader Ginsburg observed dryly that under the argument Hilliard had put forth in his brief, neither military nor intelligence personnel could be sued.
Justice Stephen Breyer commented that Hilliard has "a very sympathetic case," but he added that the court has to write an opinion that doesn't cause confusion and doesn't affect drone strikes and the like.
Justice Anthony Kennedy, potentially the deciding vote in the case, held his fire until about halfway through Hilliard's argument. And then he let loose.
"[T]his is one of most sensitive areas of foreign affairs where the political branches should discuss with Mexico what the solution ought to be," he said. Kennedy added, "It seems to me this is an extraordinary case for us to use in expanding damage suits against federal law enforcement agents when we have not done so since 1988."
Lawyer Hilliard replied that "there is no alternative remedy for the family." There have been 283 cross-border shootings, Hilliard said, despite the government's stated policy barring a Border Patrol agent from using deadly force if there is no imminent peril.
"If we assume the officer was completely at fault, there should be some relief, but that's up to the executive and legislative branches" to craft some sort of compensation, Kennedy replied.
Lawyer Hilliard shot back that that would mean the largest law enforcement group in the country would be, for all practical purposes, immune to punishment for its actions.
Next up to the lectern was lawyer Ortega, representing agent Mesa. He too faced a fusillade of questions, mainly from the court's liberals.
The law of the United States is directed at the Border Patrol agent, Justice Ginsburg observed. "And the instructions from the United States are very clear: Do not shoot to kill an unarmed, nondangerous person who is no threat to your safety."
Justice Kennedy supported Ginsburg's assertion.
"It's a U.S. officer subject to U.S. supervision. That's it," Kennedy said.
Also arguing on behalf of agent Mesa and the Border Patrol was the U.S. government, represented by Deputy Solicitor General Edwin Kneedler. He too faced tough questioning.
This case, observed Justice Elena Kagan, falls "in the heartland of" our prior rulings on a law enforcement officer's use of deadly force in violation of the Fourth Amendment.
Justice Sonia Sotomayor asked Kneedler if he had seen the cellphone video that appeared on YouTube, which captured the events at the center of Tuesday's case. Sotomayor said she had watched the video, "and I can't square the police officer's account of this incident with the film."
By the end of the argument, the justices looked very much as if they could be tied 4-4. If so, the court could hold the case for reargument at a later date this year, waiting for Trump Supreme Court nominee Neil Gorsuch to be confirmed so that a full complement of nine justices could hear and decide the case.
The alternative would be to let a tie vote stand, which for the time being would affirm the lower court's decision against the Hernández family's claimed right to sue.
Then too, court observers know that it can be folly to predict the outcome of a Supreme Court case. It is still possible that there are at least five votes for one side or the other.
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