He was shot and killed across the border. The Supreme Court decided his family can’t sue

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Erwin Chemerinsky
·4 min read
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The Supreme Court’s decision on Feb. 25 in Hernandez v. Mesa was both cruel and wrong.

The Court held that the parents of a boy shot and killed without justification by a border agent could not sue. The 5-4 ruling further closes the courthouse doors to those who are left with no remedy for serious misconduct by federal officers.

In 2010, Sergio Adrián Hernández Güereca, a 15-year-old citizen of Mexico, was Bivens v. Six Unknown Federal Narcotics Agents that divides El Paso, Tex., from Ciudad Juarez, Mexico. The international boundary line between the United States and Mexico runs down the center of the culvert. The only visible border-related features are fences and border-crossing posts that are on each side.

Hernández and his friends were playing a game that involved running up the embankment on the United States side, touching the barbed-wire fence, and running back down to the Mexican side. Border Patrol Agent Jesus Mesa, Jr., appeared on his bicycle and detained one of Hernández’s friends as he was running down the embankment on the U.S. side. Hernández, who was unarmed, retreated into Mexican territory. Mesa pointed his weapon across the border, “seemingly taking careful aim,” and fired at least two shots. At least one of the shots struck Hernández in the face, killing him.

The U.S. Department of Justice concluded that Agent Mesa had not violated Customs and Border Patrol policy or training. It declined to bring charges or take other action against him. Mexico strongly disagrees and has requested that Mesa be extradited to face criminal charges in a Mexican court, a request the U.S. has denied.

Hernández’s parents sued Mesa for money damages. The Supreme Court long has held that excessive police force violates the Fourth Amendment to the Constitution as an unreasonable seizure of a person. None of the nine justices questioned that this was tragic, excessive force by Mesa.

So why did the Supreme Court order the dismissal of the suit by Hernández’s parents?

Justice Alito – joined by Chief Justice Roberts and Justices Thomas, Gorsuch and Kavanaugh – said that “a cross-border shooting claim has foreign relations and national security implications.”

As a result, they concluded that no claim for money damages could be brought against a federal government employee under these circumstances.


Although there is a federal statute that authorizes suits against state and local government officials who violate the Constitution, no similar law exists permitting suits against federal officials for their injurious, unconstitutional conduct. Nonetheless, in 1971, in Bivens v. Six Unknown Federal Narcotics Agents, the Supreme Court held that victims of constitutional violations could sue federal officials for money damages.

That case involved Wesley Bivens who had been subjected to an illegal, humiliating search by agents of the Federal Bureau of Narcotics. The Court ruled that a claim for money damages could be brought directly under the Fourth Amendment against the federal agents who violated the Constitution.

Justice John Marshall Harlan, one of the more conservative justices then on the Court, agreed and said that for someone in Bivens’ shoes, it is damages or nothing. There is no other remedy the legal system could provide. Money damages are important to compensate injured victims and also to deter wrong-doing by government officials. For Sergio Hernández’s parents, it truly is damages or nothing.

Justice Alito and the conservative majority said for the Hernández family it is nothing. Alito said that the Court has been unwilling to extend the ability to sue under the Bivens decision and would not do so to allow the cross-border shooting suit.

But as Justice Ruth Bader Ginsburg explained, writing for the four dissenting justices, this case was like Bivens in that it was about the actions of a law enforcement officer in the United States who violated the Fourth Amendment.

Ginsburg wrote: “Rogue U.S. officer conduct falls within a familiar, not a ‘new,’ Bivens setting. Even if the setting could be characterized as ‘new,’ plaintiffs lack recourse to alternative remedies, and no ‘special factors’ counsel against a Bivens remedy. Neither U. S. foreign policy nor national security is in fact endangered by the litigation.”

Those whose constitutional rights have been violated deserve a remedy. The Constitution is meaningless if it cannot be enforced. This is just the latest instance in which the five conservative justices have closed the courthouse doors to those whose rights have been infringed and have left them without any recourse.

There are times when we should be outraged by the Supreme Court’s insensitivity to the violations of constitutional rights and the human suffering they cause. I was outraged by its decision in Hernandez v. Mesa.