U.S. Supreme Court divided over cross-border shooting case

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By Lawrence Hurley

<span class="articleLocation”>Conservative U.S. Supreme Court justices on
Tuesday expressed skepticism about reviving a lawsuit filed by
the family of a Mexican teenager against a U.S. Border Patrol
agent who fatally shot the 15-year-old from across the border in
Texas in 2010.

Among the concerns raised by justices was whether non-U.S.
citizens injured by drone attacks overseas that are directed
from the United States could file similar claims if the lawsuit
was allowed to move forward.

In a closely watched case that could affect U.S. immigration
actions under President Donald Trump’s administration, the
court’s liberal justices expressed sympathy toward allowing the
case to move forward, indicating the justices could be headed
toward a 4-4 split. Such a ruling would leave in place a lower
court’s decision to throw out the civil rights claims against
the agent, Jesus Mesa, filed by the family of Sergio Hernandez.

The Supreme Court potentially could delay action on the case
to see if Trump’s nominee to fill a vacancy on the court,
conservative appeals court judge Neil Gorsuch, is confirmed by
the U.S. Senate. Gorsuch could then potentially cast the
deciding vote. A ruling would normally be due by the end of

Justice Anthony Kennedy, a conservative who sometimes sides
with the liberal justices in close cases and whose vote could be
pivotal in this one, voiced doubt about the family’s arguments
during the court’s hour-long argument.

Kennedy indicated the question of how to compensate victims
of cross-border shootings is one that the U.S. and Mexican
governments should resolve.

“You’ve indicated that there’s a problem all along the
border. Why doesn’t that counsel us that this is one of the most
sensitive areas of foreign affairs where the political branches
should discuss with Mexico what the solution ought to be?,”
Kennedy asked the Hernandez family’s lawyer, Robert Hilliard.

Chief Justice John Roberts, another conservative, brought up
the sensitive question of whether U.S. officials could be sued
for drone attacks overseas.

“How do you analyze the case of a drone strike in Iraq where
the plane is piloted from Nevada? Why wouldn’t the same analysis
apply in that case?” he asked Hilliard.

The justices heard the case at a time that the security of
the lengthy U.S.-Mexico border is a hot topic, with President
Donald Trump moving forward with plans for a border wall he said
is needed to combat illegal immigration.

The case is one of three the justices currently are
considering that concern the extent to which the U.S.
Constitution provides rights to non-U.S. citizens.

That issue has become more pressing in light of Trump’s
January order, put on hold by the courts, to block entry into
the United States by people from seven Muslim-majority countries
and refugees. Trump is preparing a rewritten version of the ban.

The case raises several legal questions, including whether
or not the U.S. Constitution’s ban on unjustified deadly force
applied to Hernandez because he was a Mexican citizen on Mexican
soil when the shooting occurred in June 2010.

The court could resolve the case by simply deciding not to
apply a 1971 Supreme Court ruling in a case involving federal
drug enforcement agents that allowed such lawsuits in limited
circumstances. The court has been reluctant in subsequent cases
to extend that ruling to other types of conduct.

Kennedy seemed unwilling to take that step, saying the
Hernandez shooting would be an “extraordinary case” in which to
allow a lawsuit against a federal official.

Liberal justices appeared more willing to examine whether
some U.S. rights extend to border areas where the U.S.
government exercises a certain amount of authority even beyond
the border line, as it does in the culvert where Hernandez was

Justice Elena Kagan said it could be described as a no-man’s
land that is “neither one thing or another thing.”

Likewise, Justice Stephen Breyer said the border area could
be viewed as a “special kind of physical place” where U.S. law
could extend in certain instances.

Hernandez’s lawyers cited a report by the Washington Monthly
magazine that said over a five year period, border agents were
involved in 10 cross-border shootings, killing six Mexican

Justice Sonia Sotomayor, another liberal, said that in order
to deter such shootings, “why should there not be a civil remedy
to ensure that border police are complying with the

The incident took place at a border crossing between El
Paso, Texas and Ciudad Juarez, Mexico.

The U.S. Border Patrol said at the time that Hernandez was
pelting U.S. agents with rocks from the Mexican side of the Rio
Grande before the shooting. U.S. authorities have asserted that
Mesa shot Hernandez in self-defense.

Lawyers for Hernandez’s family disputed that account, saying
he was playing a game with other teenagers in which they would
run across a culvert from the Mexican side and touch the U.S.
border fence before dashing back.

The FBI also said Hernandez was a known immigrant smuggler
who had been pressed into service by smuggling gangs that took
advantage of his youth.

The family appealed a 2015 ruling by the New Orleans-based
5th U.S. Circuit Court of Appeals throwing out the lawsuit.

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