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. (Photo by Amy-Xiaoshi DePaola/Cronkite News)

WASHINGTON – Supreme Court justices appeared split Tuesday on whether the family of a Mexican teen who was shot across the border and killed by a Border Patrol agent in Texas can sue the agent.

A court in Texas said the family could not, but another court in a nearly identical case in Nogales said the Mexican parents could sue for the death of their teen son in a 2012 cross-border shooting.

The Nogales case was not strictly under consideration Tuesday, but the court’s ruling in the case of Hernandez v. Mesa, is expected to affect both. And Araceli Rodriguez, the mother in the Nogales case, was in Washington to watch Tuesday’s hearing.

Chief Justice John Roberts asked an attorney for the family in the Texas case whether courts would be stepping into U.S. foreign policy by allowing a lawsuit that could reach a finding that conflicted with the government’s diplomatic policy.

But Justice Ruth Bader Ginsburg asked how letting the case proceed against “a rogue officer acting in violation of the agency’s own instruction, using excessive force to kill a child at play. How does that call into question any foreign policy or national security policy?”

The first case began in 2010, when 15-year-old Sergio Hernandez was playing a game with friends along a concrete ditch near the border between El Paso, Texas, and Ciudad Juarez in Mexico that involved running up to the American side and touching the border fence before running back to the Mexican side.

Border Patrol agent Jesus Mesa claims he told the boys to stop, and only fired after they began throwing rocks at him. Hernandez was hiding behind a concrete pillar when he was hit in the face and died on the Mexican side of the border.

An investigation by Border Patrol determined that Mesa’s actions were justified, sparking the civil suit by the Hernandez family. The 5th U.S. Circuit Court of Appeals has twice rejected that suit, first ruling that Mesa enjoyed immunity for his actions then – after that ruling was sent back by the Supreme Court in 2017 – that Sergio did not enjoy Fourth Amendment protections as a foreign citizen on foreign soil.

According to court documents, Jose Antonio Rodriguez, 16, was walking on the Mexican side of the border in Nogales in October 2012 when Border Patrol Agent Lonnie Swartz fired 14 to 30 bullets across the border, 10 of which hit the teenager in the back, killing him.

Swartz claimed he was acting in self-defense and in November 2018, a federal jury in Tucson found him not guilty of involuntary manslaughter.

-Cronkite News video by Heather Cumberledge

But while the 5th Circuit rejected the Hernandez family’s claim, the 9th U.S. Circuit Court of Appeals in August 2018 said the Rodriguez case could go forward – relying in part on the Supreme Court’s first decision in the Texas case.

Stephen Vladeck, the attorney for the Hernandez family, based his case on a 1971 Supreme Court case that he said allowed people to bring financial claims against the government for violations of their constitutional rights.

But Justice Neil Gorsuch asked whether extending that right to non-citizens on foreign soil would run the risk of, say, putting U.S. service members in jeopardy for their actions.

“I can think of a lot of cases that’s going to encompass, right?” Gorsuch asked of the possible impact of such a ruling. “And not just cross-border shootings, but all kinds of torts that can occur transnationally…. It can’t be that this is good for one shooting only, right?”

Randolph Ortega, the lawyer representing Mesa, argued allowing these cases to go forward would extend the Constitution’s protections beyond the U.S. border in an arbitrary way that would create chaos for the court.

Justice Brett Kavanaugh asked whether the court should consider the extension anyway given the fact these families have no other legal remedy to address their claims against what was descried in the hearing as a “rogue officer acting in violation of the agency’s own instruction.”

Ortega responded that it would be better for Congress to make that determination than the courts.

Justice Sonia Sotomayor asked both Ortega and Deputy Solicitor General Jeffrey Wall why these claims are different from any other civil suit handled by U.S. courts. Wall said these cross-border shootings are a source of friction between the U.S. and Mexican governments, and that having the courts decide them would undercut diplomatic efforts to resolve them.

The court is not expected to issue a ruling until next year. But Araceli Rodriguez, speaking through a translator, said she wants the border patrol agents to know the families will never stop looking for justice.