Justices Question Whether Mexican Family Can Sue Over Cross-Border Shooting

Sergio Hernández, from Mexico, was shot to death in 2010. His family has tried to sue the border agent who shot their son from across the border in the US, but the US government argues the family shouldn't even be able to sue over the shooting.

WASHINGTON — Although the justices appeared uncomfortable with the 2010 US Border Patrol shooting that left an unarmed Mexican teenager dead, it was not clear that a majority of the Supreme Court believed that boy's family should be able to sue the agent in federal court for money damages during oral arguments Tuesday.

At issue is whether a Supreme Court doctrine allowing lawsuits against federal officials for violation of certain federal constitutional rights — referred to as Bivens actions for the case in which the doctrine was announced — can apply extraterritorially and, if so, when.

Sergio Hernández was shot to death in 2010 by a border patrol agent. Hernández, along with a small group of other teens, was spotted in the culvert that separates El Paso, Texas, from Juarez, Mexico. The border between the two cities — the border between the US and Mexico — is an invisible line in the middle of the culvert. After the border agent, Jesus Mesa Jr., detained one of the teens on the US side, he spotted Hernández behind a pillar on the Mexican side of the culvert and shot him fatally in the head — still from the US side.

Hernández's family sued, but the lower court held that the Fourth Amendment did not apply outside the US, where Hernández was when he was shot.

Justice Stephen Breyer dominated the Tuesday arguments, challenging the lawyer for Sergio Hernández's family to detail what limits could be applied to a decision in the family's favor that would prevent the decision from causing unanticipated complications in the future. The lawyer, Robert Hilliard, mostly failed to answer that question, but Breyer laid out his own proposed limits — addressing the unique space that is the culvert on the border due to the joint maintenance of the culvert — when Mesa's lawyer, Randolph Ortega, got up to speak.

Justice Anthony Kennedy pressed Hilliard on the argument that the US Supreme Court has not expanded the Bivens doctrine to allow for new categories of lawsuits for nearly 30 years.

"It seems to me this is an extraordinary case," Kennedy said, in a "critical area of foreign affairs." As such, he asked, why shouldn't it be left to the political branches — Congress and the president — to determine how the issue of cross-border shootings should be addressed.

Hilliard responded that he agreed it is an "urgent issue" regarding separation of powers, but one that he said should come out the other way. If Mesa had shot the teenager he detained in the US under the same circumstances, he noted, that teen's family would have been able to pursue a Bivens action. There's no good reason, he continued, to treat Hernández's death differently.

Later, when Deputy Solicitor General Edwin Kneedler got up to defend the federal government's argument against allowing a Bivens action for Hernández's death, Breyer jumped in again — appearing to try to ease Kennedy's earlier stated concerns.

Breyer countered that applying Bivens to the Second or Third amendments would "extend" the doctrine, but that Fourth Amendment violations, like those claimed by Hernández, are the very definition of a Bivens action — not an extension.

"Of course there is a Bivens action," Breyer said, "unless you're in the military" — highlighting an exception to Bivens.

Justice Elena Kagan backed Breyer up on the point. "It's the heartland of Bivens," she said. "That is Bivens."

The federal government argues that a border agent who takes unjustified action can face criminal prosecution. If other action or remedies should be allowed, the government argues, such action should be handled by Congress, not the courts.

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