The Supreme Court on Tuesday ruled that a Mexican family cannot go forward with a lawsuit against a federal agent for the cross-border shooting death of 15-year-old Sergio Adrián Hernández Güereca.
The five-to-four vote followed familiar ideological lines. Justice Samuel Alito wrote the opinion for the Court, while Justice Ruth Bader Ginsburg led the liberal bloc in dissent.
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The case arose in 2010 when U.S. Customs and Border Protection (CBP) agent Jesus Mesa Jr. shot and killed Hernández in a concrete border culvert between El Paso and Ciudad Juarez, Mexico. Mesa discharged his weapon while standing on U.S. soil. Hernández was on the Mexican side of the border.
Other facts surrounding the shooting are in dispute. The Hernández family claims Sergio and his friends were playing a game in the border culvert when Mesa opened fire without provocation. Mesa counters that Sergio and his companions were attempting an illegal border crossing and hurled rocks at him.
The Department of Justice cleared Mesa of wrongdoing in 2012 after investigating the incident. The Mexican government sought Mesa's extradition, but the United States refused the request.
Though the facts surrounding Hernández's death seem unusual, the use of lethal force at the border is common.
Former CBP officials filed a brief in Tuesday's case indicating that there were 24 shooting deaths in the border region between 2010 and 2014. The brief claims CBP agents responded to rock-throwing incidents with the use of a firearm in about 10 percent of cases in 2011 and 2012, the general time frame of the Hernández shooting.
At issue in Tuesday's case was whether the Hernández family can sue Mesa under a 1971 Supreme Court decision called Bivens. The family argued a so-called Bivens claim is the last remedy available.
The Bivens case concerned the unconstitutional search of a home. The High Court said the plaintiff, Webster Bivens, could sue federal officers for violating his civil rights. No federal statute authorized such a lawsuit, but the justices said an implied right to sue existed under the Fourth Amendment, which forbids unreasonable searches and seizures. Giving plaintiffs a right to sue would better accomplish the purpose of the Fourth Amendment, the Court concluded.
In the years since, the Supreme Court has been increasingly hesitant to apply Bivens to new situations. Conservative critics of Bivens say Congress—not the courts—should determine if and when federal officers are liable for misconduct. In a 2009 Supreme Court case, a five-justice majority said expanding Bivens is now a "disfavored judicial activity."
In keeping with that tide of skepticism, the majority said Tuesday that the Hernández shooting is a new situation not covered by Bivens. Several factors weigh against expanding Bivens to include cross-border shootings, Alito wrote.
Alito said allowing lawsuits like this one could interfere with foreign affairs and national security, areas the Court prefers to avoid.
"The United States has an interest in ensuring that agents assigned the difficult and important task of policing the border are held to standards and judged by procedures that satisfy United States law and do not undermine the agents' effectiveness and morale," Alito wrote. "Mexico has an interest in exercising sovereignty over its territory and in protecting and obtaining justice for its nationals. It is not our task to arbitrate between them."
Alito also noted Congress was "notably hesitant" to allow claims based on incidents in other countries.
In a concurring opinion, Justices Clarence Thomas and Neil Gorsuch said the Court should overrule Bivens, calling the ruling a "usurpation of legislative power" that has been undermined by subsequent decisions.
In her dissent, Ginsburg said the lawsuit should go forward. She said the fact the shooting occurred over an international border shouldn't matter: Mesa was standing on U.S. soil, and he used lethal force without justification. Such action, she argued, is an unconstitutional "seizure" covered by Bivens.
"It scarcely makes sense for a remedy trained on deterring rogue officer conduct to turn upon a happenstance subsequent to the conduct—a bullet landing in one half of a culvert, not the other," Ginsburg wrote.
Ginsburg also said there is no remedy open to the Hernández family besides a Bivens suit.
The case is No. 17-1678 Hernández v. Mesa.