Supreme Court: Mexican Family Can't Sue Border Patrol Agent in Cross-Border Shooting

"A cross-border shooting claim has foreign relations and national security implications."


In June 2010, U.S. Border Patrol Agent Jesus Mesa, Jr. fatally shot Sergio Adrian Hernández Guereca, a 15-year-old Mexican national, on the southern border. On Tuesday, the U.S. Supreme Court ruled that the Hernández family cannot sue for damages. 

As Reason previously reported, Agent Mesa responded to reports of human smuggling near the Paso del Norte port of entry. The port separates El Paso, Texas, and Ciudad Juarez, Mexico. While riding a bicycle, Mesa approached Hernández and a small group of Mexican nationals in a culvert right on the border. After dismounting his bicycle, Mesa dragged one of the individuals to the American side of the border to detain him. He also pointed his gun toward Hernández and fired. Hernández died on the Mexican side of the border.

Other facts of the case are still being debated. A statement from the Department of Justice said that Hernández was shot while "smugglers attempting an illegal border crossing" were throwing rocks at Mesa while he detained a suspect. FBI Special Agent Andrea Simmons said that Mesa was surrounded by those throwing rocks before he fired. Cellphone footage from the scene, however, challenges this claim.

Meanwhile, a lawyer for the Hernández family has stated that they were informed by American officials that Hernández was not among those throwing rocks. His family maintains that he was simply playing with his friends in the culvert at the time of the shooting.

In its ruling on Tuesday, the U.S. Supreme Court ruled that Agent Mesa may not be sued by the family for damages.

"A cross-border shooting claim has foreign relations and national security implications," observed the majority opinion of Justice Samuel Alito. And "Congress, which has authority in the field of foreign affairs, has chosen not to create" a federal cause of action in cases such as this. In fact, Alito maintained, Congress has left "the resolution of extraterritorial claims brought by foreign nationals to executive officials and the diplomatic process." In other words, Alito held, the Supreme Court has no business allowing this sort of suit. That decision is up to Congress.

Writing in dissent, Justice Ruth Bader Ginsburg argued that the Court's refusal to grant the family a remedy still had foreign policy implications. Ginsburg also questioned how allowing the family to sue over "an unjustified killing" would undermine border security.

The full decision is available here.