There is established Supreme Court
precedent that a law enforcement official can be sued for damages if
they violate a person’s constitutional rights, but what if the person
suing is not an American and was in another country when they were
harmed?
That is the question at the core of two federal cases involving border patrol agents
in the United States who allegedly fired their weapons across the
border, killing individuals in Mexico. One of those cases, Hernandez v.
Mesa, will be heard by the Supreme Court during its next term.
Generally
speaking, law enforcement officials are protected by qualified immunity
for actions taken in the course of their official duty, but the 1971
case of Bivens v. Six Unknown Named Agents carved out an exception that
allowed for civil claims against those federal officers who are accused
of violating the Constitution under the color of their official
authority.
The family of 15-year-old Sergio Adrian Hernandez
Guereca claims that they can make what's known as a Bivens claim against
Agent Jesus Mesa Jr., who is accused of fatally shooting their son. The
family claims that the teen and his friends were playing a game where
they ran to touch the border fence, then ran back. Mesa allegedly fired
across the border while standing on the U.S. side, with Hernandez still
in Mexico.
Sergio Adrian Hernandez Guereca, the 15-year-old who was killed by a Border Patrol agent.
"The
deadly practice of agents, standing in the United States and shooting
innocent kids across the border must be stopped," Hernandez family
attorney Bob Hilliard said in a statement. "It’s never right. It’s never
constitutional. This is one of those times when morality and our U.S.
constitution line up perfectly."
In April 2012, the Obama Justice
Department told a different story. Following an investigation, they said
that the shooting happened when smugglers were "attempting an illegal
border crossing hurled rocks from close range at a CBP [Customs and
Border Protection] agent who was attempting to detain a suspect."
The
probe involved the FBI, Department of Homeland Security's Inspector
General's Office, and prosecutors from the Justice Department's Civil
Rights Division and the U.S. Attorney's Office for the Western District
of Texas. Officials interviewed more than 25 witnesses and reviewed
video and evidence from the scene. At the conclusion of the
investigation, the DOJ said there was "insufficient evidence to pursue
federal criminal charges," and "that no federal civil rights charges
could be pursued in this matter."
The DOJ noted that "on these
particular facts, the agent did not act inconsistently with CBP policy
or training regarding use of force." Officials also determined that they
could not show that Mesa had the intent necessary for a civil rights
violation, plus there was a lack of jurisdiction for a civil rights case
because Hernandez was outside the U.S.
The Hernandez family's
civil case, meanwhile, has bounced up and down the judicial system. The
Supreme Court first heard the case in 2017, but after a 4-4 split, sent
it back down to the Fifth Circuit Court of Appeals. The case went before
the full Fifth Circuit for an en banc hearing in 2018, which resulted
in the Court of Appeals ruling against the Hernandez family.
The
appellate court cited several issues that led to their decision. For
starters, there was the argument that a foreign person on foreign soil
does not have rights under the U.S. Constitution. Additionally, the
court noted that because this is a matter involving the border, there
are national security and foreign policy issues involved, which fall
under the authority of the Executive and Legislative Branches, not the
judiciary.
Speaking of the legislature, the Fifth Circuit stated
that Congress has passed laws that lead them to believe that they would
be against allowing civil claims in situations like this. The court
pointed to the Civil Rights Act, which is limited to "citizen[s] of the
United States or other person[s] within the jurisdiction thereof," the
Federal Tort Claims Act, which excludes "[a]ny claim arising in a
foreign country," and the Torture Victim Protection Act of 1991, which
gives federal officials exemption from liability.
With regards to
national security, the Fifth Circuit referred to a Third Circuit case
where the court denied a Bivens claim against a TSA agent who was
accused of violating someone’s constitutional rights.
The Fifth
Circuit recognized that a border patrol agent should not be able to
shoot someone and get away with it simply because the other person was
on the other side of the border. “For cross-border shootings like this
one,” the court pointed out, “criminal investigations and prosecutions
are already a deterrent.”
That being said, the court noted that
government agencies had already investigated Mesa and did not bring any
charges against him.
Mesa's attorney, Randy Ortega, believes the Fifth Circuit got it right.
"The
case, in my opinion, is clear," Ortega told Fox News. "The Constitution
only provides redress for acts occurring within the United States, thus
the Fifth Circuit ruling is on point. To allow those injured in foreign
jurisdictions to bring suit in the United States would result in a
flood of litigation and a chilling effect on those protecting our
borders."
The
Mexican government got involved in the case, filing an amicus brief in
support of the Hernandez family. Mexico argued that this case is far
simpler than Mesa's defense and the Fifth Circuit make it out to be.
This is a case where a law enforcement official is accused of using
undue deadly force against someone, they argued.
“Agent Mesa was
clearly on U.S. soil when he shot Sergio Hernández, and there are no
practical or political difficulties in applying U.S. law regardless of
which side of the border Sergio was on,” Mexico’s brief said.
Mexico
also argued that this is not a case involving national security, as it
“has nothing to do with international terrorism, espionage, or any other
national security concerns.”
What it boils down to, they claimed,
is a law enforcement agent shooting someone “in such a way that he
could have hit nationals of any country on either side of the border.”
Siding
with Agent Mesa, the Trump administration filed their own amicus brief
in April 2019. They supported the Supreme Court hearing the case, in
light of a similar Ninth Circuit case – Swartz v. Rodriguez – that was
decided the opposite way. The government stated that the Fifth Circuit,
in their ruling against Hernandez, “appropriately identified several
special factors that counsel against implying a damages remedy here.”
The
Supreme Court will hear the case, which was consolidated with the
Swartz case, during the term beginning this October. Should they reverse
the Fifth Circuit’s decision, the Hernandez family would be allowed to
move forward with their lawsuit against Agent Mesa, but would still have
to prove their case in court.