Lawyers for the government and a U.S. Border Patrol officer urged the Supreme Court this week to rule that the family of an unarmed Mexican teenager who was shot to death by the officer can’t seek damages in a U.S. court because the boy was on the Mexican side of the border.

The court must reject that argument. It can do so without making the provisions of the U.S. Constitution applicable to non-citizens worldwide, a scenario that seemed to worry some of the justices at oral argument in the case on Tuesday.

The facts of the case are horrifying. In June 2010, Sergio Hernandez, 15, was playing with three friends in the concrete culvert between El Paso, Texas, and Juarez, Mexico. At least some of the boys ran up the culvert and touched a fence on the U.S. side. They turned to run back to Mexican soil when Officer Jesus Mesa Jr. approached the area on a bicycle. Mesa fired three shots at Sergio, who was hiding behind a pillar on Mexican territory, and killed him.

U.S. officials declined to prosecute Mesa and refused to extradite him for prosecution in Mexico. Seeking at least some form of redress for what they saw as an unprovoked shooting, the boy’s family filed a civil damages suit in federal court, alleging violations of the 4th Amendment, which bans unreasonable seizures and the use of excessive force as well the 5th Amendment, which says no person shall “be deprived of life or liberty ... without due process of law.”


The key issue for the Supreme Court this week was whether a constitutional claim could even be made on behalf of a non-U.S. citizen who died outside this country. One precedent suggests that it cannot: In 1990 the court held that the 4th Amendment’s ban on unreasonable searches and seizures didn’t apply to the search of a Mexican drug suspect’s residence in Mexico.

If Sergio’s family could argue that his killing violated the Constitution, Chief Justice John G. Roberts Jr. wondered, why couldn’t a similar claim be made by the victim of a drone strike guided from Nevada? But Robert Hilliard, the lawyer for Sergio’s family, contended that the court could decide this case using a much narrower test: that the Constitution applies when the action of a border control officer took place on U.S. soil and the resulting injury occurred in “close proximity.”

Hilliard also cited a case in which the court did apply the provisions of the U.S. Constitution outside the borders of the U.S.: a 2008 decision in which it said that non-U.S. citizen prisoners at Guantanamo could challenge the constitutionality of their confinement. In that case, the court employed a “functional” approach rather than fixating on national borders. The court should adopt a similar approach in this case, and give Sergio’s family the day in court they deserve.


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