“Border Agents Shouldn’t Get Sued for Shooting Foreigners, Trump Administration Tells Supreme Court” by Nick Sibilla, Forbes, November 13, 2019
On Tuesday, the U.S. Supreme Court considered Hernández v. Mesa, a case arising out of the killing of Sergio Adrián Hernández Güereca, an unarmed 15-year-old Mexican teenager who was shot in Mexico by a Border Patrol agent standing in the United States. At issue at this stage in the case is whether Hernández’s family can sue the agent, Jesus Mesa Jr., for the deprivation of the child’s constitutional rights or if there is simply no remedy in U.S. law for that deprivation. If the oral arguments are any guide, the case may turn on the question of where the Supreme Court should draw the line if it permits a foreign national deprived of constitutional rights on foreign soil to have a cause of action against a federal official acting within the United States.
The lawyer for the teenager, Stephen Vladeck, urged the court to draw the line to recognize claims when U.S. officials are—as here—engaged in traditional law enforcement activities. Such a line would be consistent with historical practice of common law and with the case in which the Supreme Court first found an implied cause of action for damages in such circumstances, and it would not require the court to recognize, for example, causes of action for tortious conduct that arises during military operations.
The question of line-drawing is particularly interesting in this case because lines will be drawn no matter the outcome. In response to questioning by Justice Stephen Breyer, Mesa’s attorney agreed that both a Mexican national shot and killed in the United States and an American citizen shot and killed in Mexico would have a right to sue under these circumstances but that only a Mexican national shot in Mexico would be left without recourse. As Justice Sonia Sotomayor illustrated perfectly during the argument, that would mean a Border Patrol agent in the United States could spray bullets indiscriminately into Mexico, killing many Mexican citizens, and be totally immune from litigation regarding the deprivation of their rights.
The lawyer for the United States, Principal Deputy Solicitor General Jeffrey Wall, took things further, arguing for the first time in this case that even in the case of a Mexican national who had crossed the border into U.S. territory—maybe even someone shot and killed by an agent 10 miles into the United States—”special factors” would likely counsel against recognizing a cause of action. Such special factors would include foreign relations and national security concerns. Perhaps because his time was up, Wall did not receive aggressive questions about the breadth of this argument and where the United States would draw the line. Would an Immigration and Customs Enforcement agent in Tennessee who unconstitutionally shoots and kills a foreign national during the course of a routine immigration enforcement operation be absolutely immune from suit because that case raised foreign relations and national security concerns?
Given the prevalence of excessive-force incidents involving Border Patrol agents and the longstanding lack of meaningful oversight and accountability, as described in an amicus brief filed by two former, high-level U.S. Customs and Border Protection officials, the court’s decision in this case will set an important precedent regarding the judiciary’s commitment to protecting the rule of law within our nation and along our borders—and to valuing human life.
For more on how to reframe the immigration debate, see CAP’s report: “Restoring the Rule of Law Through a Fair, Humane, and Workable Immigration System.”