U.S.-Mexico border shooting case at Supreme Court today

The Supreme Court hears arguments on Tuesday in a dispute over a Mexican family’s ability to sue a U.S. Border Patrol officer who killed their son in a cross-border incident. Both governments filed briefs in the case, on opposite sides of the dispute.

Hernandez's family sued the agent for damages, but in 2015 the Fifth Circuit Appeals Court said the family had no standing to sue because the teen was a Mexican citizen and not protected by the Fifth Amendment under its Due Process clause or by the Fourth Amendment. The full appeals court had unanimously ruled in favor of the agent.

The Supreme Court took the appeal in October 2016 and it also added a question about determining if the parents had a constitutional right to sue a Border Patrol officer.

The controversy will likely get its share of new attention because of the political situation involving the new Trump administration in Washington and its stance on immigration and Mexico.

However, the federal government brief in this case was filed by the Obama administration and it supports Jesus Mesa, Jr., the border agent. Among the arguments made by the Justice Department was that courts weren’t the proper location to settle a dispute that could involve foreign policy considerations, and that allowing such lawsuits would allow U.S. military and intelligence agencies to be sued for injuries incurred abroad.

The government of Mexico’s brief argues that “Mexico has a responsibility to maintain control over its territory and to look after the well-being of its nationals. It is a priority for Mexico to see that the United States has provided adequate means to hold the agents accountable and to compensate the victims.”

In 2015, Constitution Daily Supreme Court correspondent Lyle Denniston explained to our readers the core constitutional issue in this case.

“Overseas, or offshore, application of the rights spelled out in the Constitution was dealt a major setback in 1990, when the Supreme Court ruled that a Mexican national who was being held prisoner inside the United States had no Fourth Amendment right to challenge a search of his home in Mexico by a joint investigative team from the two countries,” Denniston said, referring to a case called United States v. Verdugo-Urquidez.

“Even a quarter-century later, however, just what that decision actually means about extraterritorial reach for the Constitution remains a matter of considerable debate. The main opinion said that constitutional rights do not apply outside the country to an individual who had no voluntary links to the United States. But Justice Anthony M. Kennedy supplied a necessary fifth vote to make a majority in that case, and his separate opinion suggested that he thought that the specific context of each case might actually make the difference in the analysis.”

Then, Justice Kennedy wrote a major opinion for the Court in Boumediene v. Bush in 2008 extending the constitutional right of habeas corpus to the foreign nationals that the U.S. was then holding (and scores of whom it still holds) at the military prison at Guantanamo Bay.

“That opinion, if understood to apply beyond the specific factual situation of the detainees at Guantanamo, would appear to stand for the proposition that the extraterritorial application of the Constitution’s guarantee of rights depends upon ‘objective factors and practical concerns’ (as Kennedy put it in the opinion), rather than the nearly categorical approach of the Verdugo-Urquidez decision in 1990,” Denniston explained.

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