In a fight that pits the Mexican government against the Trump administration, justices tomorrow must sort through whether the U.S. Constitution covered the unarmed15-year-old Mexican national when he was running back and forth across the 33 foot concrete river separating El Paso, Texas, and Juarez, Mexico. Hernandez was on the Mexican side of the invisible borderline when he was shot in the head.
“Like countless children before them,” Hernandez family attorneys wrote, “Sergio and his friends were playing a game in which they dared each other to run up the culvert’s northern incline, touch the U.S. fence and then scamper back down to the bottom.”
The family, supported by the Mexican government, immigrant advocacy groups and others, wants the right to sue the agent, Jesus Mesa Jr., who shot Hernandez in cold blood and without provocation on June 7, 2010. Mesa, supported by the Justice Department, contends the shooting was justified and that, more critically, the constitutional prohibition on unjustified use of deadly force did not apply.
“The United States clearly exercises no power or authority over the territory where Hernandez was standing when he was shot,” Mesa’s El Paso-based attorneys wrote in a legal brief.
Mesa’s attorneys will share time during the hourlong oral argument Tuesday morning with a career Justice Department lawyer, who will reinforce the case that, as the department put it in a brief, “aliens injured abroad” cannot sue individual federal officers.
The Mexican government hired a U.S. law firm to file a competing legal brief supporting the Hernandez family in which it contended that “shootings at the border are, unfortunately, far from a rare occurrence.”
It’s also an argument that resurrects past controversies, including whether the Constitution extends to Guantanamo detainees, even as it fans an Obama-era debate over border security efforts that sometimes turn lethal.
From October 2010 to August 2016, Customs and Border Patrol officers reported 243 incidents of lethal force involving firearms, most along the 2,000-mile U.S.-Mexico border, according to government records cited in the Mexican government’s brief.
“It’s important, and it’s important for a number of reasons,” Mary Kenney, senior attorney with the American Immigration Council, a nonprofit advocacy group, said of the case in an interview Thursday. “It’s important for holding government agents accountable for their actions.”
Usually, sovereign immunity protects individual federal law enforcement officers from being sued.
In a 1971 case involving narcotics officers, though, the Supreme Court ruled that damages can be sought from officers who violated an individual’s constitutional rights. The Fourth Amendment prohibits “unreasonable searches and seizures.” The Fifth Amendment states that “no person shall . . . be deprived of life, liberty, or property, without due process of law.”
A 1985 case arising out of Memphis, Tennessee, established that, as the court said, to “seize an unarmed, nondangerous suspect by shooting him dead” can be a violation of the Fourth Amendment.
The key question now is whether such constitutional protections reach beyond U.S. soil. Sometimes, they can. In a landmark 2008 decision, the high court ruled that Guantanamo detainees enjoyed constitutional habeas corpus rights even though they were incarcerated on Cuban territory leased by the U.S. government. Through a habeas corpus petition, prisoners can challenge their incarceration.
Justice Anthony Kennedy, then as now a frequent swing vote on the court, stressed in the 2008 case that “objective factors and practical concerns, not formalism” should guide decisions about “determining the geographic reach of the Constitution.” Unlike in 2008, though, the court is now shorthanded with eight justices, raising the possibility of a 4-4 deadlock.
The Supreme Court, moreover, has appeared reluctant in other cases to extend the ability to sue federal agents or officials, suggesting that the Hernandez family may face an uphill battle.
Mesa shot Hernandez when the two were about 60 feet from each other, separated by a borderline that could not be precisely seen but that was being extensively patrolled by U.S. officers.
According to the Hernandez family account, Hernandez had run past Mesa toward a pillar beneath a bridge on the Mexican side of the culvert. Mesa “drew his firearm, aimed it at Sergio and shot him in the head, next to his eye,” the family recounted. The teenager was described as a young man who “loved playing soccer and aspired to one day become a police officer.”
Mesa’s attorneys countered that “Hernandez had been arrested twice before for alien smuggling and had been given voluntary returns to Mexico due to his juvenile status.”
Federal prosecutors, following an extensive investigation, declined to file charges against Mesa.
“The shooting occurred while smugglers attempting an illegal border crossing hurled rocks from close range at (Mesa), who was attempting to detain a suspect,” the Justice Department concluded at the time.
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