A short-handed Supreme Court that’s about to be recast seemed split Tuesday about whether to extend U.S. constitutional protections to cover a teenager shot on Mexican soil.
An even split, though, will be a defeat for the teenager’s family members and the immigration advocates who support them.
Amid a broader debate over President Donald Trump’s plans for both the court and the U.S.-Mexico border, some justices pushed back against claims that the teenager’s family could sue the Border Patrol agent who shot 15-year-old Sergio Hernandez. Hernandez was on the Mexican side of a culvert separating El Paso, Texas, and Juarez, Mexico when the agent shot him from 60 feet away.
“This is one of the most sensitive areas of foreign affairs,” cautioned Justice Anthony Kennedy, adding that the case presented an “urgent” example of the need for “separation of powers.”
Chief Justice John Roberts, Jr. and Justice Samuel Alito likewise pressed Hernandez family attorney Robert C. Hilliard, with Roberts skeptically questioning whether the overseas victim of a U.S. drone strike triggered from the United States might also be covered by the constitutional guarantees that include a ban on unreasonable searches and seizures.
“I am trying to see what the logic is,” Roberts said, leaving little doubt that he didn’t see any at all.
Justice Stephen Breyer, though, pointed out that the U.S.-Mexico border where the June 7, 2010 shooting occurred presents some unique circumstances. His fellow liberal justices also sounded sympathetic to the Hernandez family’s claims that the U.S. Constitution applies in the cross-border shooting.
“This case has, as far as the conduct goes, the United States written all over it,” Justice Ruth Bader Ginsburg declared.
15-year-old Sergio Hernandez was standing in Mexico, barely across the border, unthreatening and unarmed, when he was shot and killed by a U.S. Border Patrol agent standing in the United States.
Robert C. Hilliard, attorney.
If the Supreme Court ties 4-4 on the case argued Tuesday, as appears to be a possibility, the result would uphold a lower appellate court’s decision that rejected the Hernandez family’s claims, without setting a national precedent. Based on the tone and questions during the hour-long oral argument, moreover, five votes appeared to be out of reach for the family
A Border Patrol agent who was traveling by bicycle, Jesus Mesa Jr., shot Hernandez under disputed circumstance.
According to the Hernandez family, Hernandez was playing in the border culvert and 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. Hilliard, who is based in Corpus Christi, Texas, called Mesa a “rogue officer” on Tuesday.
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 declined to file charges against Mesa, and the Justice Department on Tuesday reinforced Mesa’s argument that constitutional protections effectively ended at the border.
“The two nations have drawn a line,” said Deputy Solicitor General Edwin Kneedler, “and this is a circumstance where the conduct here is clearly extra-territorial.”
Usually, sovereign immunity protects individual federal law enforcement officers from being sued.
The Supreme Court, though, has also 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.”
The shooting case argued Tuesday tested when this constitutional protection may apply on foreign territory.
“The border is very real,” Mesa’s El Paso-based attorney, Randolph J. Ortega, told the justices. “It is very finite. It is not elastic.”
Still, in a landmark 2008 case involving Guantanamo detainees, the court concluded the Constitution’s habeas corpus protections extend even to those incarcerated on Cuban territory, because the United States exercised effective control over the leased land. On Tuesday, Breyer repeatedly cited the unique nature of the border area where Hernandez was shot.
Adding to the case’s sensitivity, the Mexican government filed a brief supporting the Hernandez family in which it contended that “shootings at the border are, unfortunately, far from a rare occurrence.”
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.
Justice Clarence Thomas, in keeping with his standard practice, did not speak or ask questions during the argument. A decision is expected by the end of June.
The hour-long oral argument was the high court’s first since Trump took office Jan. 20. The Senate Judiciary Committee plans to begin confirmation hearings March 20 for Judge Neil Gorsuch, Trump’s nominee to fill the seat left vacant by the death last February of Justice Antonin Scalia.