The Supreme Court is taking up an appeal from the parents of a Mexican teenager who was killed by a U.S. Border Patrol agent. The case could help define when foreigners outside the U.S. have access to U.S. courts.
The justices are hearing argument Tuesday in a case that arose from an incident that took place in June 2010 in the cement culvert that separates El Paso, Texas, from Ciudad Juárez, Mexico.
The circumstances of exactly what occurred are in dispute, but what is clear is that the agent was on the U.S. side of the border when he fired his gun, striking Sergio Adrian Hernández Guereca on the Mexican side.
Lower courts dismissed the parents’ lawsuit. The Supreme Court is considering whether noncitizens who are injured or killed outside the United States can have their day in U.S. courts.
The legal issues are different, but the Supreme Court case resembles the court battle over President Donald Trump’s ban on travelers from seven majority Muslim nations in at least one sense. Courts examining both issues are weighing the rights of foreigners.
Privacy experts also are watching the case because it could affect how courts treat global internet surveillance, particularly when foreigners are involved. “It’s there, not in the context of a cross-border shooting, that the Fourth Amendment question in Hernández seems to matter most,” George Washington University law professor Orin Kerr wrote on the Volokh Conspiracy blog.
The Fourth Amendment protects against unreasonable searches and seizures.
U.S. officials chose not to prosecute Agent Jesus Mesa Jr. in the killing of the Mexican teenager and the Obama administration refused a request to extradite him so that he could face criminal charges in Mexico.
The Trump administration, like its predecessor, is arguing that the location of the teenager’s death, in Mexico, should be the end of the story.
But Sergio’s shooting was not an isolated border incident. Parents of a teenager killed in Nogales, Mexico, from gunshots fired across the border by a U.S. agent have filed a civil rights lawsuit that is being delayed until the Supreme Court rules.
The government’s response to that incident was notable because prosecutors are pursuing second-degree murder charges against Agent Lonnie Swartz in the death of José Antonio Elena Rodríguez, 16.
A 2013 report commissioned by U.S. Customs and Border Protection and written by an outside group faulted the agency for not sufficiently investigating the 67 shootings that took place from 2010 to 2012 and questioned the use of force in some of those incidents. The agency has said it has tightened its policies, particularly in response to rock-throwing incidents.
MARK SHERMAN
