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Supreme Court blocks family's lawsuit in cross-border shooting of Mexican teen

Decision likely means that relatives in Arizona fatal shooting also cannot pursue claim

The Supreme Court ruled Tuesday that the family of a Mexican boy, shot and killed in 2010 by a Border Patrol agent in Texas does not have the right to file suit in U.S. courts. The decision likely dooms a similar lawsuit filed in Arizona by the family of 16-year-old Jose Antonio Elena Rodriguez, who was shot and killed that same year in Nogales, Sonora. 

In a 5-4 split, the court ruled that the family of 15-year-old Sergio Adrián Hernández Güereca could not sue the federal government or Border Patrol Agent Jesus Mesa Jr. because, as Justice Samuel Alito wrote for the majority, the "context" of a cross-border shooting is "markedly new" and such a claim has "foreign relations and national security implications."

The decision in the Hernández case has major implications for the lawsuit filed over the death of Elena Rodriguez which remains in limbo after the 9th Circuit Court of Appeals decided to withhold their decision until the Supreme Court has issued a ruling on the case from Texas. 

While a panel of three judges agreed in 2018 that Jose Antonio's mother, Araceli Rodriguez, could sue Border Patrol Agent Lonnie Swartz and the federal government, the court's decision was based on the idea that while the court was reluctant to extend the ability to sue federal officers to cross-border shooting cases, it "would do so here because no other adequate remedy was available." 

The Supreme Court heard oral arguments for the case in November. 

Alito was joined by Chief Justice John G. Roberts, and Justices Clarence Thomas, Neil M. Gorsuch, and Brett M. Kavanaugh. Justices Stephen G. Breyer, Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsberg dissented. 

The family sued under a 1971 case known as Bivens v. Six Unknown Named Agents, which allows people to sue for damages if federal officers are found to have violate the 4th Amendment's stricture on searches and seizures. However, Alito wrote that, "As we have made clear in many prior cases, however, the Constitution’s separation of powers requires us to exercise caution before extending Bivens to a new 'context,' and a claim based on a cross-border shooting arises in a context that is markedly new." 

Thomas went further, arguing with Gorsuch that "the time has come to consider discarding the Bivens doctrine altogether." 

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"The foundation for Bivens—the practice of creating implied causes of action in the statutory context—has already been abandoned. And the Court has consistently refused to extend the Bivens doctrine for nearly 40 years, even going so far as to suggest that Bivens and its progeny were wrongly decided," Thomas wrote. "The analysis underlying Bivens cannot be defended. We have cabined the doctrine’s scope, undermined its foundation, and limited its precedential value. It is time to correct this Court’s error and abandon the doctrine altogether," he said. 

In her dissent, Ginsburg rejected this reasoning, writing that "rogue U. S. officer conduct falls within a familiar, not a 'new,' Bivens setting." 

"Even if the setting could be characterized as 'new,' plaintiffs lack recourse to alternative remedies, and no 'special factors' counsel against a Bivens remedy," she wrote. She also rejected the idea that a ruling against the Border Patrol agent could engager foreign policy or national security.  "Moreover, concerns attending the application of our law to conduct occurring abroad are not involved, for plaintiffs seek the application of U. S. law to conduct occurring inside our borders," she said. 

"The complaint states that Mesa engaged in that very conduct; it alleged, specifically, that Hernández was unarmed and posed no threat to Mesa or others. For these reasons, as Mesa acknowledged at oral argument, Hernández’s parents could have maintained a Bivens action had the bullet hit Hernández while he was running up or down the United States side of the embankment," she wrote. "The only salient difference here: the fortuity that the bul- let happened to strike Hernández on the Mexican side of the embankment. But Hernández’s location at the precise moment the bullet landed should not matter one whit."

The Border Patrol Victim's Network — a group of advocates and family members of those killed by both Border Patrol agent and customs officers — sharply criticized the court's ruling, saying that the U.S. Supreme Court turns "the U.S.-Mexico border into a free-fire zone for Border Patrol agents," and that the decision destroyed the "last hopes for justice" for families who filed civil lawsuits against Border Patrol.

The decision will allow Border Patrol agents to fire across the border with "total impunity," they said, arguing that the shootings of at least six Mexicans have been "egregious cases of excessive use of lethal force."

"Thanks to the four justices who stood for justice, but unfortunately there are five justices who make decisions based on politics and supporting Trump's agenda to turn the U.S.-Mexico border into a war zone," the group said.

Winding through courts

For more than five years, the two cases have wound through the federal court system, as district judges in Arizona and Texas considered, and each agreed that the families should be able to sue over cross-border shootings. However, the appellate courts split, with the 9th Circuit finding that families could sue, while the 5th Circuit refused. The Hernández family appealed, and the U.S. Supreme Court issued an order, asking the 5th Circuit to reconsider specific legal arguments in the case.

The two cases came during a rash of cross-border shootings along the southwestern border by Border Patrol agents. Following this period, a 2013 review by Police Executive Research Forum found that agents "put themselves in harm’s way by remaining in close proximity to the rock throwers when moving out of range was a reasonable option." 

"Too many cases do not appear to meet the test of objective reasonableness with regard to the use of deadly force," the group wrote. 

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Ginsburg alluded to this in her dissent noting that a brief filed to the court warned that “without the possibility of civil liability, the unlikely prospect of discipline or criminal prosecution will not provide a meaningful deterrent to abuse at the border."  

"In short, it is all too apparent that to redress injuries like the one suffered here, it is Bivens or nothing," Ginsburg wrote. 

In 2010, Hernández was playing a game with friends in the concrete culvert that separates El Paso, running up an embankment to touch the fence on the U.S. side, and then running back into Mexico. During this game, Border Patrol Agent Mesa arrived, detained one of the Mexican boys, and then said that rocks were thrown at him. Mesa fired his weapon, hitting Hernández when he peeked out from a concrete pillar, killing the boy. 

The government said that Mesa fired only after Hernández refused to follow commands to stop and in 2012, the Justice Department declined to bring criminal charges against the agent. 

Two years later, in October 2012, Agent Swartz along with other agents and Nogales police officers, were near the fence in Nogales, Ariz., when someone threw rocks from the street in Mexico, up a 20-foot embankment and over the 18-foot steel border fence. Swartz walked up to the fence and fired 16 rounds in 34 seconds, hitting Jose Antonio, 16, in the back and head.

Swartz faced two jury trials for the killing in 2018, but was ultimately acquitted. 

Before Swartz was indicted, the family sued Border Patrol to unseal the agent's name, and sought damages for the killing, arguing along with the ACLU that Swartz violated Elena Rodriguez's civil rights when he shot and killed the boy. 

In Tucson, a federal judge agreed, arguing that Swartz violated the boy's Fourth Amendment rights, but dismissed a claim on the boy's Fifth Amendment rights, arguing that Swartz's conduct was better understood under the Fourth Amendment because he shot Elena Rodriguez he "seized" the boy in Mexico. 

Meanwhile, the El Paso case went to the 5th Circuit court after a judge argued the opposite, using the Fifth Amendment and dismissed the Fourth Amendment claim. A three-judge panel agreed that the Hernández could sue the agent, and the federal government, however, the full court disagreed and the case went to the Supreme Court. 

In both cases, the courts agreed that the agents did not have qualified immunity, a set of protections given to law enforcement officers, and said that Bivens, a court case from the 1970s, could allow the family to sue because the agents were acting in the color of federal authority when they violated the boys' constitutional rights.

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Amy-Xiaoshi DePaola/Cronkite News

Attorney Cristobal Galindo at the Supreme Court with the parents of Sergio Hernandez, a Mexican 15-year-old who was on the Mexican side of the border when he was shot and killed in 2010 by a Border Patrol agent standing in the U.S. The family is fighting for the right to sue the agent after a Border Patrol investigation claimed the shooting was justified.

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