Unreasonable use of force
The Supreme Court has decided to limit damage suits against government officials in Hernandez vs. Mesa. However, the court’s more liberal justices dissented from the ruling.
On the border between the United States and Mexico, controlled by the United States, U.S. Border Patrol agent Jesus Mesa fatally shot Sergio Hernández, a 15-year-old Mexican boy, seemingly without justification or provocation.
At the time of the shooting, Mesa was in U.S. territory, while Hernández was on Mexican soil. Hernández’s family sued Agent Mesa for damages, arguing that his arbitrary use of deadly force violated the Fourth Amendment.
Under the US Constitution, courts perform an essential checking function on the political branches of government, ensuring compliance with the Constitution’s protection of individual rights.
In another case: Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, allows individuals to seek monetary compensation from federal officials who have violated their constitutional rights.
Agent Mesa countered that the Fourth Amendment does not apply because Hernández was standing in Mexican territory at the time of the shooting. In a divided decision, the United States Court of Appeals for the Fifth Circuit held that the Hernández family could not assert a claim under the Fourth Amendment because Hernández was a Mexican citizen who was on Mexican territory at the time of the shooting. Hernández’s family then petitioned the Supreme Court to review this decision.
Constitutional Accountability Center Civil Rights Director David Gans attended today’s argument and issued the following reaction:
“In an Oval Office meeting back in March, President Trump reportedly suggested that U.S. Border Patrol agents “shoot migrants in the legs to slow them down.”
During today’s oral argument, Trump’s Department of Justice argued that persons killed or harmed by Border Patrol agents, even within the United States, should have no right to go to court to remedy the acts of such rogue border guards. In their view, the courthouse doors must be firmly closed against any efforts to hold Border Patrol agents accountable to the Constitution. The Supreme Court shouldn’t sanction a Constitution-free zone at the border that would allow U.S. Border Patrol agents to shoot to kill without any possibility of redress.
It seems that Hernandez vs. Mesa showsf the court’s determination to limit damage suits against government officials.
Congressman Joaquin Castro Chairman of the Congressional Hispanic Caucus (CHC) issued the following statement in response to the Supreme Court 5-4 decision on Hernandez vs. Mesa:
“Sergio was an unarmed child when he was gunned down across the border by US Border Patrol Agent Mesa. Because of today’s decision, the Hernandez family now has no path to seek justice for his murder. This ruling means that moving forward, no one, not even unarmed children or their families, have the right to sue a federal agent for a cross-border shooting. This decision comes at a time when thousands of asylum seekers are being forced to live in camps along the border because of the ‘Remain in Mexico’ policy. If children like Sergio – who was just playing along the border – can be murdered without recourse then CBP agents know that they will not be held accountable for similar crimes.
He went on to say: “Justice Ginsberg rightly noted that this was not an isolated incident. It’s become abundantly clear that Trump’s Department of Homeland Security and Customs and Border Protection are out of control and must be reined in. Congress must hold this department accountable and ensure that agents who abuse their power face justice.”
The case began in 2010 when 15-year-old Sergio Adrian Hernandez was playing a dangerous game with several friends in the dry culvert separating El Paso from Ciudad Juarez, Mexico. The boys ran up the embankment on the U.S. side, touched the border fence and then ran back to the Mexican side”.
The federal courts had gone back and forth on whether the parents’ suit could proceed. The Supreme Court took up the case once before, but in 2017 sent it back to Texas without reaching a final decision.
While the Constitution protects the rights of individuals from actions by the government, the court has said that it is up to Congress to decide whether victims whose rights are violated may sue and win damages. After the Civil War, Congress said states and local government officials can be forced to pay for violating constitutional rights. But the situation is less clear for federal agents.
Justice Samuel A. Alito Jr. said the “Constitution’s separation of powers requires us to exercise caution before extending” liability and claims for damages “to a new context, and a claim based on a cross-border shooting is markedly new … and has foreign relations and national security implications. Because of the distinctive characteristics of cross-border shooting claims, we refuse to extend Bivens into this new field,” he said.
Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Neil M. Gorsuch and Brett M. Kavanaugh agreed.
Apart from border killings, there are implications in this ruling for all people at the margins because in a series of rulings, the high court has said that officials, agents and the police have a qualified immunity that protects them from being sued in all but extreme cases.
Thus, the court could close the door to damage claims even in extreme cases.
Justice Ruth Bader Ginsburg called the agent a “rogue officer” who, while standing on U.S. soil, was accused of “using lethal force against a person who poses no immediate threat to the officer and no threat to others.” This is a classic definition of an unreasonable use of force forbidden by the 4th Amendment, she said.
She went on to say “Although the bullet happened to land on the Mexican side of the culvert, the United States unquestionably has jurisdiction to prescribe law governing a Border Patrol agent’s conduct…. Even accepting that the setting in this case could be characterized as ‘new,’ there is still no reason why Hernandez’s parents should face a closed courtroom door,” she said.
Joining her in dissent were Justices Breyer, Sotomayor and Kagan.
American Civil Liberties attorney Lee Gelernt, who argued a similar border shooting case in Nogales, Ariz., called the decision ominous.
“The gravity of this ruling could not be clearer given the Trump administration’s militarized rhetoric and policies targeting people at the border,” he said. “Border agents should not have immunity to fatally shoot Mexican teenagers on the other side of the border fence.”
The NABWMT is committed to fostering respect, honesty, and communication among people of different races and cultural backgrounds. We value the inherent worth and dignity of all people. As Martin Luther King Jr. said, ‘Injustice anywhere is a threat to justice everywhere.” Let these be the words to stand by on all sides of all borders.
Sources: LA Times and ACLU: https://www.aclu.org/press-releases/aclu-comment-supreme-court-ruling-cross-border-shooting-case