By: Dianne Jahangani
Journal of Global Rights and Organizations, Associate Articles Editor
WASHINGTON D.C. – On November 12, the U.S. Supreme Court will decide whether a government officer can be brought before a federal court for violating a foreigner’s constitutional rights when the act took place on foreign soil.
On July 7, 2010, a young 15-year-old national of Mexico, Sergio Adrián Hernández Güereca, was playing on the Mexican side of the border, unarmed and unthreatening when an U.S. Border Patrol agent, Jesus Mesa, shot Sergio twice, ultimately killing him.
As a result, Sergio’s parents, on behalf of Sergio, brought this lawsuit against Mesa. However, Mesa claimed immunity as a government officer at work, stating that Congress had not created laws which assign liability to agents as well as stating that those killed on foreign soil cannot sue American officers. Yet, the case is not that simple, as the young boy was shot across the border and Mesa discharged his weapon while on American soil. This creates an interesting legal issue and calls into question the scope of the U.S. Constitution.
To date, the Department of Justice has concluded that there was insufficient evidence to prosecute under a federal homicide charge and that prosecutors lacked jurisdiction because Hernández was neither within the borders of the U.S. nor present on U.S. soil.
Despite the DOJ’s initial decision, the plaintiffs asserted that Agent Mesa used deadly force without justification against Sergio Hernández, thus violating the Fourth and Fifth Amendments. On behalf of the Hernández parents, the Institute for Justice filed an amicus brief urging the U.S. Supreme Court to allow the parents of Sergio to sue the federal officer in federal court stating the following:
“The Fourth Amendment protects citizens against the arbitrary use of deadly force at the border, at least in the context of a close range, cross border shooting in a confined area patrolled by federal agents.”
After waiting several years, on November 12, the plaintiffs will finally have the ability to present their case to the U.S. Supreme Court. Although this is certainly a legal victory for the Hernández family, they are still fighting an uphill battle, since lower courts have previously ruled against the family:
“The Hernandez family argues that Mesa violated their son’s Fourth Amendment right to be free from unconstitutional governmental searches and seizures, his death being the ultimate seizure. But the Fifth Circuit interpreted the prior precedent to preclude the Mexican parents from suing, citing special factors like national security, law enforcement, and diplomatic relations as concerns.”
Even if the Supreme Court disagrees with the lower court’s findings and rules in favor of the Hernández family, the family must still make the argument that the agent violated their son’s constitutional rights. This ultimate ruling will have far reaching consequences as it will effectively extend the scope of the Constitution to outside the U.S. borders.
The decision rendered in this landmark case will ultimately determine the scope of the U.S. Constitution and power delegated to U.S. agents at the borders and national security.
For further information, please see:
Quartz – A US border patrol agent killed a child in Mexico. Can the parents sue him? – 26 Oct. 2019
ABC News – Supreme Court hears case of teen shot dead in Mexico by border agent in US – 21 Feb. 2019
U.S. Supreme Court – Hernandez v. Mesa – March. 20 2018
NPR – Mom of Cross-Border Shooting Victim ‘Still Waiting for Victory’ – 27 June. 2017
The New York Times – An Agent Shot a Boy Across the U.S. Border. Can His Parents Sue? – 17 Oct. 2016
Read the Petitioners’ Brief Here.
