Borders

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."

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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.

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  1. Much as I despise government in general, that seems like the right ruling. The remedy is for the Mexican government to protest a US government employee shooting a Mexican national across the border. If the family can’t get their own government to press the issue, they have their own government to blame, not the shooter’s.

    1. Yeah, I don’t like what happened but this does seem like the right ruling. Seems like it would’ve gone nowhere too, qualified immunity being what it is.

      Also, letting foreign nationals sue the US Government when we do bad stuff sets a dangerous precedent. Can’t have a bunch of Afghans suing us about all the democracy we spread at their wedding, we’ll never get anything done.

    2. This reminds me of Tommy Lee Jones’ best movie: The Three Burials of Melquiades Estrada. If you haven’t seen it, go check it out.

    3. I disagree. Dude *invaded* Mexico, kidnapped someone over there, ‘trafficked’ them into the US, then shot over the border at someone else – that particular crime is the one at issue here and that one was committed in the United States and should be completely within US jurisdiction even if the victim was across the border.

      Imagine standing at your state border and someone on the other side shoots you – and the courts say they’re untouchable because your cops don’t have jurisdiction over the shooting and the cops on his side don’t have jurisdiction over your injury?

      And no one should be dependent on having the government press their case. You don’t have extra rights as part of a collective.

      1. There was a show on fox few years ago called “the border”
        I liked it
        Think it got cancelled after 2 seasons

      2. I disagree. Dude *invaded* Mexico, kidnapped someone over there, ‘trafficked’ them into the US, then shot over the border at someone else

        That doesn’t appear to be what actually happened. If you click through on the links to the underlying news stories or look at the previous Reason articles, they’re all in agreement that the border patrol agent never left the US side of the border and the person he apprehended (before rocks were thrown at him from the Mexican side of the border) was on the US side. There was mention the was dragging the guy he apprehended “on the US border” – as in the guy was fighting him and he was being dragged on the ground for the part of the way. Zuri Davis changed it in her post to make it seem like he was on the Mexican side of the border and then dragged into the United States so he could be arrested which none of the various accounts claim was the case.

  2. “A cross-border shooting claim has foreign relations and national security implications,”

    “unlike almost anything else these days.”

  3. His family maintains that he was simply playing with his friends in the culvert at the time of the shooting.

    I remember when I was a kid, I used to play a game where I crossed the base perimeter at Area 51. The base guards shot me and I was like, Whut? I was just playing.

    This is not a fucking game. Border patrol officers are shot at across the border and not allowed to return fire. Rocks can kill a person.

    As I ask with all stupid shit kids do, where at the parents? It sucks this kid was shot but I am sure some charity will give him some money since all the money to sue the US government as a political ploy to get the borders open didnt work.

    1. I remember working at a naval installation where the locals didnt want us there. Some trouble makers would throws rocks over the fence.

      I backed my vehicle as close to the fence as I could and floored it. I flung gravel through the fence and hit those fuckers. We didn’t have that rock throwing problem ever when I was on duty. Word gets around who will fight back.

    2. Yeah, even if you buy the story that he was just playing with his friends, why is that the location?

      I had neighborhoods I wasn’t supposed to play in as a kid, and those neighborhoods were an order of magnitude less dangerous than the US border.

      I have no idea if the shooting was justified or not, but I do know that you’re not doing yourself any favors by voluntarily putting yourself in CBP’s line of fire. People get shot at all the fucking time down there, pick a different ditch to play in.

      1. Based on the footage, the shooting definitely looks questionable. There is some language that’s specific… for instance “officer surrounded by rock-throwing kids”. In the video, it appears the officer was NOT surrounded by rock-throwing kids, but there’s nothing in the video which says the kids WEREN’T throwing rocks. It’s too unclear to tell. I’m leaning towards “not justified” given the totality of circs… but I agree that this specific lawsuit seems like the wrong way to go given the international implications.

    3. This is not a fucking game. Border patrol officers are shot at across the border and not allowed to return fire. Rocks can kill a person.

      1. No they are not.

      2. Water can kill a person. Is that the standard now? Or is it just the standard for your own particular preferences?

      1. Let’s not forget that the guy these people were throwing rocks at had already invaded a foreign country and kidnapped on of their friends.

        1. Which is all criminal actions and he should be charged if proven, however, based upon the fact Congress hasn’t addressed how the courts should settle international lawsuits and the established protocol is to go through the State Department (Executive branch) strictly speaking the USSC was right in their ruling. nothing precludes the agent from being charged criminally. Nothing precludes the Mexican government asking for his extradition or filing a formal complaint.

          1. Its not really an international crime though, is it?

            He shot someone – all the shooting happened on the US side of the border.

            And since when do we think that people only have rights through their government?

            1. The victim was in Mexico and he took possession of a person south of the border.

        2. huren oö is the best place for having fun with local girls

    4. Look who supports killing children. It’s sad that Reason allows thugs like you around.

    5. re: throwing rocks

      First, that’s not proven. This case was resolved at motion-to-dismiss. The plaintiff’s claims (in this case, the parents’) are assumed to be true at this stage of the case. They say there were no rocks thrown. It hasn’t been proven – and now, likely never will be.

      But even if the border cop’s story is true, the alleged thrower was on the other side of a culvert big enough to hold the Rio Grande. In that part of the country, it’s on the order of 50′. You might be at risk if the rock thrower was a major league pitcher. A rock thrown that far by a kid, though? Seriously? Are you also worried about stubbing your toe on those deadly pillows on your bedroom floor?

      1. It’s just the lawsuit not possible criminal charges that were dismissed. The Mexican Government can charge him and file for extradition. The American prosecutors can file charges.

        1. The Mexican government already sought extradition. It was refused. American prosecutors have already declined to bring charges.

      2. Haha. You cant throw a rock 50 ft? What a pussy.

        1. I can’t throw a rock at that range hard enough to hurt anyone nor so fast that they can’t easily step out of the way. And unless you’re a major league pitcher, I’m betting neither can you.

      3. I had a 14yo pitcher that could throw 90, there are 3-4 every year in the house league that can. Many 14yo boys can throw a baseball 60.5 feet at 75 mph.

        1. there are 3-4 every year in the house league that can… throw 80+

  4. 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.

    I’m no legal expert, but I agree with the ruling. This is one of those cantankerous situations that does in fact have foreign policy implications. Alito is not being unreasonable in saying that this is in Congress’ purview. The US can still remedy this situation with Hernandez’ family, and possibly more directly and justly than an individual court case against an individual officer can. It’s not for the US Supreme court to determine the constitutional implications in this particular case.

  5. So I can shoot people across the border and not face any consequences?

    1. Only if you’re shooting south.

      1. No, that isn’t what the courts ruled at all. He can still be charged criminally. The Mexican Government can charge him and file for extradition.

  6. Like most here I would agree that the SCOTUS ruled correctly and the two governments should work to rectify and address the situation. While many would like blame the kids throwing rocks, I would suggest caution. Shooting rock thrower is never has a good look. If this happens too much you are likely to see the start of Mexican Lives Matter, as the next political slogan.

  7. A nice gathering of Libertarians For Sketchy Government Shootings Without Consequences (Samuel Alito, Honorary Chair).

    1. Fuck off Cuck

      1. very persuasive

        go buy a brain cell

        1. Why? Do you need some?

      2. Not a good look when the rev is out libertarianing 90+% of reason commenters in the first place, but this is your best retort?

    2. Shouldnt you be happy that there is one less religious clinger in the world?

  8. He was acting as an agent of the US. Their grievance is with the US. They/we have the deep pockets.

    We also have sovereign immunity. So that is why you sue the agent.

    1. Who has qualified immunity because it hasn’t been adjudicated that shooting a kid in Mexico from the US violates the kid’s rights.

  9. Its so easy now. Whatever is against, the opposite is the libertarian position.

  10. watch the video

    piece of crap thug in uniform should be in prison

  11. How can there be a foreign relations issue when True Americans get shot by the police? It just sounds like they’re getting the full citizen experience.

  12. The cellphone video is inconclusive. SDCOTUS made the correct decision.

  13. Border Patrol agent acquitted in fatal shooting of Mexican teen

    Here’s another rock throwing incident across the US-Mexican border.

  14. Border Patrol agent shoots Russian who was allegedly trying to sneak into U.S.

    A fucking Russian was trying to sneak into the USA and was shot after resisting arrest.

  15. Ummm………. Isn’t Trump’s big concrete border wall going to fix these kinds of issues??? From what I’ve seen of them neither a bullet or a rock will be of any concern unless it goes up and over at which time it really would be entirely a gov-to-gov situation to be worked out on a treaty deal.

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