The Supreme Court on Tuesday agreed to hear next term a case concerning a teenager who was fatally shot in Mexico in 2010 by a US Border Patrol agent standing on American soil. His family seeks to sue the agent in US courts.
The teenager, 15-year-old Sergio Hernandez, was shot to death by the agent in 2010 as he cowered behind a pillar in Mexico. Hernandez’s family says the agent violated his constitutional rights.
The case comes as lower courts have split on the issue of whether agents can be held liable for the deaths of migrants at the border, and as the Trump administration is considering more measures to reduce migration.
Solicitor General Noel Francisco has maintained that the family of the teen cannot come to court to sue for damages.
In court briefs, Francisco argued that “imposing a damages remedy on aliens injured abroad by US government officials would implicate foreign-policy considerations that are committed to the political branches” and would inject the courts into sensitive matters of international diplomacy that would “risk undermining the government’s ability to speak with one voice in international affairs.”
Francisco urged the justices to take up the case next term and affirm a lower court opinion that blocked the family’s lawsuit from going forward. Francisco said the Supreme Court should hear the case because lower courts have split on the issue.
The decision by the appeals court in the Hernandez case, for example, conflicts with a ruling in the case of another cross-border shooting, which occurred along the Arizona-Mexico border in 2012.
In 2010, Hernandez was with friends on a cement culvert that separates El Paso, Texas, from Ciudad Juarez, Mexico. The international border runs down the middle of the culvert.
Hernandez’s parents say their son and the others were playing a game: crossing the border, touching a fence and then running back to Mexico soil. They accused Jesus Mesa Jr., the Border Patrol agent, of arriving on the scene and fatally shooting their son.
According to the government, Mesa resorted to force only after Hernandez refused to follow commands to stop throwing rocks.
The Justice Department declined to bring a criminal charge against Mesa in 2012.
Lawyers for Mexico filed a friend of the court brief with the justices urging them to take up the case, arguing that in “recent years” officers of the US border agencies have killed “dozens of individuals at or near the U.S. Mexico border.”
“When agents of the United States government violate fundamental rights of Mexican nationals and others within Mexico’s jurisdiction, it is a priority to Mexico to see that the United States has provided adequate means to hold the agents accountable and to compensate the victims,” they wrote, adding that the US would expect “no less” if the situation were reversed.