This week, the U.S. Supreme Court will hear oral arguments in a tragic border shooting case. But the case’s impact goes far beyond immigration and border security issues. Indeed, the plaintiffs seek to vindicate a bedrock right: the ability to hold rogue federal agents personally responsible when they violate their oath to uphold the Constitution. Thanks to procedural roadblocks and immunity doctrines, federal courts have made it almost impossible to sue government officials gone rogue. Hernandez v. Mesa offers the Supreme Court the chance to reverse this disturbing trend and restore some desperately needed accountability.
The case, as the Supreme Court previously described it, centers around “a heartbreaking loss of life.” Back in 2010, U.S. Border Patrol agent Jesus Mesa shot and killed a 15-year-old Mexican teenager named Sergio Adrián Hernández Güereca. Sergio and his friends were playing in a dried-out culvert of the Rio Grande river, with the U.S.-Mexico border splitting the culvert in two. When Agent Mesa arrived, he promptly detained one of the boys. Sergio ran, made it to the Mexican side of the border, and just stood there, unarmed and unthreatening. The officer shot at Sergio twice, killing him.
The defense of the DOJ
The U.S. Department of Justice investigated the shooting but decided in 2012 it was “a reasonable use of force or would constitute an act of self defense.” Federal prosecutors refused to indict Mesa. The Mexican government, on the other hand, charged Mesa with murder, but the United States won’t extradite Mesa so he can face trial.
Nor can Sergio’s parents make their case in Texas state courts. At first glance, this may seem surprising: Texas expressly allows citizens of foreign countries to sue for damages in state court, even if the injury happened in a foreign country. But thanks to Congress, which passed the Westfall Act in 1988, federal agents can’t be sued under state common law.
The only hope left for Sergio’s parents to attain any semblance of justice is through federal courts, specifically through a “Bivens action.” In in a landmark 1971 decision, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court ruled that victims could sue federal officers in federal court for infringing their constitutional rights, even when there’s no federal law that explicitly allows a lawsuit. “For people in Bivens’ shoes,” Justice John Marshall Harlan wrote in a concurrence, “it is damages or nothing.” Today, for Sergio’s parents, it’s Bivens or nothing.
Though the Supreme Court once upheld Bivens actions for violations of the Fourth, Fifth, and Eighth Amendments, the court now considers it “disfavored” to expand Bivens. Seeking to dismiss the parents’ Bivens action, attorneys for agent Mesa argue that shooting Sergio didn’t violate the Constitution because Sergio didn’t have any constitutional rights. Sergio was “a Mexican citizen with no ties to this country, and his death occurred on Mexican soil,” they wrote in a brief last month, so “the very existence of any ‘constitutional’ right benefiting him raises novel and disputed issues.”
Don't allow Mesa's attorneys to obfuscate the issue
This is misdirection. The authority of federal courts to hold government officers accountable doesn’t hinge on the victim’s citizenship. After all, the Fourth and Fifth Amendments are not limited to “citizens” but instead explicitly protect “the right of the people” and “any person.” Moreover, Sergio, like other casualties of excessive force, was shot by a federal officer, acting under color of law, who fired from U.S. soil.
If the Supreme Court sides with Mesa and adopts their line of argument, this would let federal agents go rogue without any culpability for their misconduct. Not only does this clash with common decency, it also clashes with centuries of legal tradition.
As the Institute for Justice detailed in an amicus brief for the case, for most of this country’s history, individuals — Americans and foreigners alike — successfully sued federal officers who violated their rights. In one early 19th Century case, the Supreme Court upheld a Danish national’s demand for damages, after his ship was unjustly seized by a U.S. naval officer while entering Haiti.
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Refusing to recognize the Bivens claim by Sergio’s parents would slam the courthouse doors, not just on the family but on countless other victims. A constitutional right is worth nothing unless it can be enforced. The Supreme Court should ensure that the Bill of Rights is not a list of empty promises.
Anya Bidwell and Nick Sibilla work at the Institute for Justice. Follow Nick on Twitter: @nick_sibilla
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This article originally appeared on USA TODAY: Border Patrol shooting case: Key issue of government accountability