Supreme Court Rules for U.S. Agent Who Shot Mexican Teenager

Supreme Court Rules for U.S. Agent Who Shot Mexican Teenager

WASHINGTON — The Supreme Court divided 5 to 4 twice along its usual lines on Tuesday, with its conservative majority ruling against the parents of a teenager killed by an American agent shooting across the Mexican border and a death row inmate in Arizona who said his sentencing was unlawful.

The case concerning the shooting, Hernandez v. Mesa, No. 17-1678, started in 2010, when Jesus Mesa Jr., a border guard, shot a fleeing 15-year-old boy in the head, killing him. The boy, Sergio Hernández Guereca, had been playing with friends in the dry bed of the Rio Grande that separates El Paso from Ciudad Juárez, Mexico. The international borderline, unmarked, runs through the middle of the culvert.

The boys dared one another to run up a concrete incline and touch the barbed wire of the American border fence. Mr. Mesa grabbed one of them. Sergio made it back to Mexico before Mr. Mesa shot him from about 60 feet away.

Justice Samuel A. Alito Jr., writing for the majority, said Sergio’s parents could not sue Mr. Mesa without congressional authorization.

Such authorization is not always required in suits claiming violations of constitutional rights. In 1971, in Bivens v. Six Unknown Named Agents, the Supreme Court ruled that federal officials may sometimes be sued for violating the Constitution without specific statutory authorization.

But the court has grown increasingly uneasy about the decision, which concerned the unconstitutional search of a home in Brooklyn, and it has cautioned that the ruling should not be extended lightly to new contexts.

Justice Alito said the shooting at issue in the case was such a new context. “Unlike any previously recognized Bivens claim,” he wrote, “a cross-border shooting claim has foreign relations and national security implications.”

“The broad issue of violence along the border, the occurrence of cross-border shootings and this particular matter have been addressed through diplomatic channels,” he wrote.

Diplomacy, however, appears to have failed in the case. In a Supreme Court brief, the government of Mexico had urged the justices to allow Sergio’s parents to sue.

“When agents of the United States government violate fundamental rights of Mexican nationals and others within Mexico’s jurisdiction, it is a priority to Mexico to see that the United States provides adequate means to hold the agents accountable and to compensate the victims,” the brief said. “The United States would expect no less if the situation were reversed and a Mexican government agent, standing in Mexico and shooting across the border, had killed an American child standing on U.S. soil.”

Justice Alito also wrote that “the issue here implicates an element of national security.”

“Unfortunately, there is also a large volume of illegal cross-border traffic,” he wrote. “During the last fiscal year, approximately 850,000 persons were apprehended attempting to enter the United States illegally from Mexico, and large quantities of drugs were smuggled across the border. In addition, powerful criminal organizations operating on both sides of the border present a serious law enforcement problem for both countries.”

Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Neil M. Gorsuch and Brett M. Kavanaugh joined the majority opinion.

In a concurring opinion, Justice Thomas, joined by Justice Gorsuch, called on the court to overrule the Bivens decision entirely.

In dissent, Justice Ruth Bader Ginsburg wrote that the parents’ lawsuit was authorized by the Bivens ruling. Indeed, she said, Mr. Mesa’s lawyer had acknowledged that the suit would have been proper had the shooting occurred in the United States.

“The only salient difference here: the fortuity that the bullet happened to strike Hernández on the Mexican side of the embankment,” Justice Ginsburg wrote. “But Hernández’s location at the precise moment the bullet landed should not matter one whit.”

Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined the dissent.

The justices also ruled, along the same divided lines, that an Arizona death row inmate, James McKinney, was not entitled to be resentenced by a jury after a federal appeals court ruled that the trial judge who had condemned him to death failed to take into account evidence of abuse Mr. McKinney had endured as a child.

Justice Kavanaugh, writing for the majority, said it was enough that the Arizona Supreme Court had considered whether the additional evidence would warrant a different sentence for Mr. McKinney, who was initially sentenced to death in 1993 for killing two people in their homes during separate burglaries.

In a 2018 decision, the State Supreme Court reweighed the evidence, now including information about the abuse Mr. McKinney had endured, and concluded that a death sentence was still warranted.

When the case was argued in December, Justice Kavanaugh asked about the impact of a new sentencing proceeding before a jury. “You’re requiring a new jury sentencing 28 years after the murders and after the victims’ families have been through this for three decades,” he told Neal K. Katyal, a lawyer for Mr. McKinney.

Mr. Katyal responded that capital sentencing should not be done based on a paper record. “We’re not talking about some technical violation here or something,” he said. “We’re talking about the heart of what capital punishment sentencing is all about.”

Justice Ginsburg wrote the dissenting opinion in the case, McKinney v. Arizona, No. 18-1109, saying the death sentence imposed by the Arizona Supreme Court was unconstitutional.

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