Family of Teen Killed in Cross-Border Shooting Can’t Sue Border Patrol Agent, SCOTUS Rules

Tobias Hoonhout

The Supreme Court ruled Tuesday that a U.S. Border Patrol agent cannot be held liable for the shooting of a Mexican teenager, with the conservative majority overruling the liberal minority in a 5-4 decision.

Hernandez v. Mesa — which was heard by the Court in 2017 before being sent back to a federal appeals court — stems from the 2010 shooting of 15-year-old Sergio Adrian Hernandez Guereca by CBP agent Jesus Mesa. Mesa, who says he was responding to a call about an illegal border crossing, shot Guereca from across the border, as the teenager was playing a game that involved running into U.S. territory.

Hernandez’s family sued Mesa based the on the 1971 case Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, in which the Supreme Court said a homeowner could sue federal agents under the Fourth Amendment for any search without a warrant. But the majority decided not to apply Bivens in the case for a number of different reasons.

“The court reasoned that such an incident presents a ‘new context’ and that multiple factors—including the incident’s relationship to foreign affairs and national security, the extraterritorial aspect of the case, and Congress’s ‘repeated refusals’ to create a damages remedy for injuries incurred on foreign soil––counseled against an extension of Bivens,” Justice Samuel Alito wrote in the majority opinion.

Associate Justice Clarence Thomas, joined by Associate Justice Neil Gorsuch, wrote a concurring opinion that argued “the time has come to consider discarding the Bivens doctrine altogether.”

“Federal courts lack the authority to engage in the distinctly legislative task of creating causes of action for damages to enforce federal positive law,” Thomas said. “We are exercising legislative power vested in Congress.”

Justice Ruth Bader Ginsburg wrote the dissent, arguing that the concern with international law and national security should not apply because Mesa shot from within the U.S.

“Neither U. S. foreign policy nor national security is in fact endangered by the litigation,” Ginsburg explained. “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.”

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