Seven years ago, Border Patrol agent Jesús Mesa shot and killed fifteen-year-old Sergio Adrián Hernández Güereca. On Monday, the Supreme Court refused to tell us whether Hernández’s parents can successfully sue agent Mesa.
The aggrieved parents sued Mesa claiming that the officer violated the Fourth and Fifth Amendments of the U.S. Constitution when he killed Hernández. They wanted Mesa to financially pay for violating their son’s constitutional rights, a claim brought under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), which recognizes an implied right to sue federal officers for violations of constitutional rights.
At the time of his death, Hernández was in a concrete culvert that straddles the border between the United States and México. According to the version of events that led the Supreme Court accepted as true because of the procedural posture in which it received this case, Hernández and a group of friends were merely playing a game in which they ran from one side of the culvert to the other. He was unarmed and unthreatening. Other people, the Justice Department found, were throwing rocks at Border Patrol agents. No evidence suggests that Hernández had any connection to the rock-throwers. When he was shot, Hernández was on Mexican territory. Though the Supreme Court didn’t mention it, video taken by witnesses confirms this version.
The Court was presented with a series of important constitutional questions: Do the Fourth and Fifth Amendments stop at the United States’ external territorial boundary even though, as here, that is in invisible line that runs in some part of a concrete canal? In his dissent, Justice Breyer describes the actual boundary between the two countries as “an invisible line of which none…is aware.”
A handful of Supreme Court decisions spanning several decades have left this area of law a muddled mess. In the past, the Court seemed to adopt a formalist approach: the Constitution only reaches as far as the nation’s borders. More recently, a case involving detainees held at the infamous Guantánamo Bay facility suggested that the Court has embraced a more functional view of the Constitution’s reach. Instead of suddenly stopping at the imaginary boundary line, Boumediene v. Bush, 553 U.S. 723 (2008), indicated that courts ought to take a more functional view of constitutional reach. Applied to Hernández, we might say that constitutional limits on the government’s power to deprive people of their life should not stop at the nation’s territorial boundary because bullets don’t.
The Supreme Court declined to clarify. Instead, it sent the case back to the lower courts to disentangle a constitutional thicket. In addition to the Fourth and Fifth Amendment claims, the lower courts will need to decide whether Hernández’s parents have a remedy. That is, can they even sue agent Mesa? Or is this a situation in which there is no private right of action that they can bring against the federal officer? Always an uphill battle, the so-called Bivens analysis for Hernández’s parents is complicated by the fact that, according to the Supreme Court, cross-border shootings might be an area where the courts are not well suited to intervene absent congressional instruction.
There is a clear danger to the Bivens inquiry that the Court has mandated. The lower courts might decide that the cross-border nature of this deadly incident means that a resolution ought to be left to diplomats. That is unlikely to be of much consolation to Hernández’s parents who want the person who killed their son to brought to account. It’s also likely of little help to others who are shot in the future while they stand south of the Río Grande River and their shooter stands north of it.