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The Supreme Court Is Set to Deadlock on a Cross-Border Shooting Case

In 2010, a border patrol agent in El Paso shot and killed an unarmed 15-year-old in Juárez. Should the teenager’s family be allowed to sue?

By Kate Wheeling


Attorney Bob Hilliard, representing the family of Sergio Adrian Hernandez Guereca, speaks in front of the U.S. Supreme Court after presenting his argument on February 21st, 2017. (Photo: Mandel Ngan/AFP/Getty Images)

Seven years ago, 15-year-old Sergio Hernández was hiding behind a pillar on the Mexican side of a concrete culvert that separates Ciudad Juárez from El Paso, Texas, when a border patrol agent on the American side fatally shot the unarmed teenager in the head.

Hernández’s family sued the agent, claiming that his actions violated the Fourth Amendment protections against excessive force. Lawyers for the agent, Jesus Mesa Jr., argued that there was insufficient evidence to prosecute, and that prosecutors didn’t have the jurisdiction to pursue charges against Mesa since Hernández was not on United States soil. The Fifth Circuit ruled against the family; the family appealed, and the case has made its way to the U.S. Supreme Court, where the eight sitting justices will decide whether or not the protections of the Constitution extend beyond our nation’s borders. A 4–4 tie would essentially allow the lower court to have the final say on the law.

When the Supreme Court heard oral arguments in the case on Tuesday, the Court’s liberal bloc claimed that it was the agent’s actions that were subject to U.S. laws, not the rights of the Mexican teen. As the Los Angeles Timesreported:

[Justice Ruth Bader] Ginsburg argued forcefully that it was a mistake to focus on the Mexican border rather than on the conduct of the border agent. She said the law of the United States governs the case and the conduct of the agent. “And the instruction from the United States is very clear: Do not shoot to kill an unarmed, non-dangerous person who is no threat to your safety. Do not shoot to kill,” she said. “That’s U.S. law…. So I don’t understand all this about Mexico. It’s about the United States law operating on the United States official who is acting inside the United States.”

Meanwhile, the Court’s conservative justices appeared wary of the precedent that such a decision would set. Chief Justice John Roberts Jr. wondered if drone strikes abroad piloted by Americans on U.S. soil would be subject to similar lawsuits. Justice Anthony M. Kennedy indicated that, as a foreign affairs issue, the executive and legislative branches—rather than the courts—should decide whether or not Hernández should be protected by the Fourth Amendment.

The Court is expected to make a ruling on the case later this week, and a 4–4 split appears likely. The decision would mark the third such deadlock since Justice Antonin Scalia passed away suddenly last February. Congress had a chance to avoid this gridlock, but Republicans spent a year blocking the confirmation of Judge Merrick Garland, President Barack Obama’s mainstream nominee.

It’s possible that the Court could postpone the ruling until a ninth justice is confirmed. The Judiciary Committee hearings for Judge Neil Gorsuch, President Donald Trump’s nominee, are set to begin in one month’s time. It’s unclear if Democrats, still bitter over the treatment of Garland, will attempt to filibuster Gorsuch’s confirmation, but Politicoreports that the originalist has been trying to win over Democratic senators by extolling Garland.