Supreme Court Considers If Mexican Nationals Can Sue For Border Shooting

The U.S. Supreme Court today heard arguments in a case testing whether the family of the dead boy can sue the agent for damages in the United States. The case involves one unarmed 15-year old shot across the border in Mexico, but officials report a substantial rise in such cross border shootings in recent years.

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When a U.S. Border Patrol agent standing in America shoots and kills someone on the Mexico side of the border, should the agent be liable for damages? The U.S. Supreme Court heard arguments on that question today. The justices seemed torn between a sense of justice and legal rules that have protected U.S. agents from lawsuits. NPR legal affairs correspondent Nina Totenberg has more.

NINA TOTENBERG, BYLINE: In the summer of 2010, 15-year-old Sergio Hernandez and his friends were playing chicken, running up and touching the border fence between Juarez, Mexico, and El Paso, Texas. Border Patrol agent Jesus Mesa Jr. arrived on the scene and grabbed one of the kids while others ran past him, crossing the invisible border line back into Mexico and hiding behind a railroad trestle. Cellphone videos show Sergio peeking out from his hiding place as Agent Mesa points his gun, fires three shots and kills the boy.

After an investigation by the Border Patrol agency, Mesa was neither prosecuted nor disciplined, so the dead boy's parents sued the agent for damages, claiming that he had acted in violation of the U.S. Constitution by killing their son. On the steps of the Supreme Court today, Agent Mesa's lawyer, Randolph Ortega, said the Constitution does not extend across the Mexican border.

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RANDOLPH ORTEGA: All borders are real and finite, and borders determine where the primacy of one country ends and the other begins.

TOTENBERG: Bob Hilliard, the lawyer representing the dead boy's family, however, countered that the 44,000 Border Patrol agents are domestic law enforcement officers who are constrained by the Constitution.

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BOB HILLIARD: Right now while they're in the United States, their boots never leave the dirt of our country. And it's the government's position that the Constitution turns off like a light switch at the border, and they are unconstrained by our United States Constitution.

TOTENBERG: Inside the Supreme Court chamber, Hilliard had some difficulty selling that position to the court's four conservative justices. Chief Justice Roberts - should the U.S. Constitution likewise apply to a drone attack where the plane is piloted from Nevada? Could the family of those who were killed or injured sue for damages? Hilliard fumbled until Justice Ginsburg observed dryly that under the argument he'd put forth in his brief, neither military nor intelligence personnel could be sued.

Justice Breyer - you have a very sympathetic case, but we have to write an opinion that doesn't cause confusion and doesn't affect drone strikes and the like. Justice Kennedy, potentially the deciding vote in that case - this is one of the most sensitive areas of foreign affairs where the political branches should discuss with Mexico what the solution ought to be. It seems to me this is an extraordinary case for us to use in expanding damage suits against federal law enforcement agents when we have not done so since 1988.

Lawyer Hilliard - there's no alternative remedy for the family. There have been 283 cross-border shootings despite the government's stated policy barring a Border Patrol agent from using deadly force without imminent peril. Justice Kennedy - if we assume the officer was completely at fault, there should be some relief, but that's up to the executive and legislative branches to craft some sort of compensation. Lawyer Hilliard - that would mean the largest law enforcement group in the country would be immune.

Next up to the lectern was lawyer Ortega representing Agent Mesa. He too faced a fusillade of questions mainly from the court's liberals. Justice Ginsburg - the law of the United States is directed at the Border Patrol agent, and the instructions from the United States are very clear. Do not shoot to kill an unarmed, non-dangerous person who is no threat to your safety. Justice Kennedy seemed to second that. It's a U.S. officer subject to U.S. supervision. That's it.

Backing up lawyer Ortega today was the U.S. government represented by Deputy Solicitor General Edwin Kneedler. He too faced some tough questions. Justice Kagan - this case falls in the heartland of our prior rulings on a law enforcement officer's use of deadly force in violation of the Fourth Amendment. Justice Sotomayor - have you seen the cellphone video that appeared on YouTube - because I did, and I can't square the police officer's account of this incident with the film.

Nina Totenberg, NPR News, Washington.

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