By Matt Hadro
Washington D.C., Feb 24, 2017 / 16:25 pm
The Supreme Court this week heard oral arguments in the case of a Mexican teen shot dead by a border patrol agent. But when it comes to legal standing in the case, the situation is far from clear.
"This is a difficult case, as its facts are very compelling for the plaintiffs, but the law is less so," said Mary G. Leary, professor of law at The Catholic University of America.
Leary spoke with CNA about the case Hernandez v. Mesa currently before the Supreme Court.
At the U.S.-Mexico border in 2010, three Mexican boys played a game of "chicken" by seeing who would run the closest to the border. Fifteen-year-old Sergio Hernandez crossed the border and was noticed by border patrol agent Jesus Mesa. As Hernandez ran back into a culvert between the walls on either side of the border, the agent shot him dead.
Mexico requested that Mesa be extradited for the killing, but the U.S. refused. Hernandez's family sued for damages, claiming that the Fourth Amendment protects against such use of force on the border.
Although the Hernandez family has appealed to the Constitution, the Fourth Amendment protections might not necessarily apply in the case, Leary said.
"The plaintiffs have made a constitutional claim, but it is far from clear that the Constitution applies to the family of a non-American citizen injured or in this case killed outside the border of the United States," she stated.
The Fourth Circuit had dismissed the case, saying "the plaintiffs fail to allege a violation of the Fourth Amendment, and that the Fifth Amendment right asserted by the plaintiffs was not clearly established at the time of the complained-of incident."
Oral arguments in the case of Hernandez v. Mesa were heard by the Supreme Court on Tuesday.
"This tragic case is one of the most simple extraterritorial cases this Court will ever have in front of it," said Robert Hilliard, arguing for the teen's family.
"First, all of the conduct of the domestic police officer happened inside the United States. Second, it was a civilian domestic police officer. Third it was a civilian plaintiff, not an enemy combatant. Fourth, it was one of the most fundamental rights, the right to life. Fifth, the other government involved supports – the government of Mexico supports the claim," he said.
Justice Stephen Breyer admitted that the family has "a very sympathetic case," but he and other justices were skeptical of issuing a broad ruling that could affect drone killings carried out in foreign countries by citizens operating in the U.S.
Also, justices noted, there is no specific rule on the books dealing with these instances. Lawyers are trying to make the case for the victim's family by appealing to the Fourth Amendment's protections against "unreasonable search and seizure."
Hernandez's case is not an isolated one, Hilliard insisted, claiming that there have been "at least 10 cross-border shootings" with six deaths of Mexican nationals.
Justice Kennedy asked whether the Court should consider the matter if "this is one of the most sensitive areas of foreign affairs" and "the political branches should discuss with Mexico what the solution ought to be."
"But isn't this an urgent matter of separation of powers for us to respect the duty that…the executive and the legislative have with respect to foreign affairs?" he asked Hilliard.
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When Randolph Ortega argued for Mesa before the Court, justices pressed him on the location of the killing and the role of Border Patrol officers.
"The actor is the Border Patrol member. And the instruction from the United States is very clear: Do not shoot to kill an unarmed, non-dangerous person who is no threat to your safety. Do not shoot to kill. That's U.S. law," Justice Ruth Bader Ginsburg observed.
"It's the United States law operating on the United States official who's acting inside the United States. This case has, as far as the conduct is concerned, United States written all over it," she said.
Ortega insisted that "in areas of the United States where there is a clearly defined border, as we have here, the Fourth Amendment stops unless the person seized – in this case Hernandez – had some voluntary contact with the United States."
Ginsburg asked how it would be different if an officer, standing in the U.S., shot a foreign national in the U.S. versus shooting someone on the border.
"That doesn't make a whole lot of sense, does it, to distinguish those two victims?" she asked.
"I think it's very distinguishable because of the very real border," Ortega replied. "Wars have been fought to establish borders. The border is very real."
