Cross-Border Shooting Case Returned To Appeals Court For Review

The case involving whether the family of a Mexican boy shot by a U.S. Border Patrol agent can sue for damages will eventually make its way to the Supreme Court.

By Michael MarksJune 27, 2017 11:49 am,

It has been more than seven years since U.S. Border Patrol agent Jesus Mesa Jr. shot and killed Sergio Hernandez, a 15-year-old Mexican boy. Hernandez and his friends were standing on the Mexican side of a culvert that separated Ciudad Juárez from El Paso, throwing rocks at Mesa.

Hernandez’s parents sued Mesa for damages, but so far, the question of whether or not the Mexican nationals can sue an American law enforcement agent has been tied up in the courts. Yesterday, the Supreme Court declined to make a definitive ruling, sending the case back to the U.S. Court of Appeals for further consideration.

Andrew Kent, professor at the Fordham University School of Law, says the issues in this case are sensitive and far-reaching, a situation that likely led the Supreme Court to return the case to the appeals court for further review.

“Justice Kennedy, who’s often a swing vote, has very different instincts about the two big issues in this case – one, whether the constitutional right extends to a Mexican national on Mexican soil, [and] the second one, whether someone should be able to sue a U.S. government official for damages in this context,” Kent says.

The Hernandez family has asked courts to rule on whether or not a U.S. government official can be sued for wrongfully injuring or, in this case, killing someone. Kent says local police officers can be sued in such cases.

“There is no statute that allows suing a federal government official for money damages in these contexts,” Kent says. “And the Supreme Court has kind of supplied that absence at times by saying [that] in some circumstances, even though there’s no statute, we’re going to allow, under the Constitution, a suit against a federal official for money damages.”

Kent says the Supreme Court has recently become more reluctant to allow such suits. Because the Hernandez case was a cross-border incident, it has implications for international relations, and presents an unusual set of facts, he says.

“A big question here, which could make this case quite significant, is that the Fourth Amendment has never previously been held to extend to non-citizens who are outside U.S. borders,” Kent says. “I think the court was very sensitive about wading in there, because the Fourth Amendment is an extremely broad part of the Constitution.”

Kent says allowing an extension of Fourth Amendment protections across the border, and to a non-citizen, in this case, could expose the U.S. government and its officials to a variety of legal actions.

Kent says the case will eventually return to the Supreme Court, giving the newest justice, Neil Gorsuch, an opportunity to participate in arguments.


Written by Shelly Brisbin.