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Supreme Court weighs immunity for officer accused of cross-border excessive force

Ephrat Livni
Spirit of Justice statue at US Capitol, showing mother and child.

The US Supreme Court heard oral arguments this week in a tragic case about a cross-border shooting of a Mexican teen by an American law enforcement agent that highlights the two countries’ physical proximity and emotional estrangement.

The matter arises from Border Patrol agent Jesus Mesa’s deadly shooting of the 15-year-old Sergio Hernandez in 2010. Each was on his home soil when the incident occurred, and there are numerous issues in dispute, most notably the facts.

An American investigation of the agent’s actions found Mesa didn’t use excessive force when shooting from the US into Mexico—the agent said Hernandez was throwing rocks at him while watching his friend being detained on the US side of the border, although that isn’t clear from a video of the incident. The parents say the boy was just playing with friends innocently. As the justices noted at this week’s hearing, for the purposes of the parents’ lawsuit against the agent—which they are now fighting for the right to pursue— the court must accept the facts as alleged by a plaintiff at the complaint stage, according to the law.

The justices aren’t going to decide if Mesa actually did use excessive force. They are not deciding facts but a legal issue, which is whether the Hernandez family can even make a claim, given that their son was a Mexican in Mexico when he was shot. For the purposes of this initial question then, the justices take at face value the parents’ argument that a rogue agent violated their child’s Fourth Amendment constitutional right to be free from unreasonable governmental search and seizure. What the court must decide is whether the parents are entitled to seek relief based on its prior cases, which did not contemplate cross-border situations like this one.

Generally speaking, federal officers are immune from liability for incidents that occur on the job. However, where a constitutional violation is alleged, as here, the high court has allowed injured parties to sue. Mesa has claimed immunity while the Hernandez family has for years sought to prove the agent violated the constitution and therefore can sue. But this case involves two nations, which Mesa and the US government, and a lower court, all say make this a “new context” unlike the prior decisions the parents are relying on.

The matter first made its way to the high court in 2017 and was remanded back to the Fifth Circuit Court of Appeals for reconsideration in light of two prior Supreme Court rulings. The 1971 case Bivens v. Six Unknown Named Agents of the FBI allowed lawsuits against US agents for damages when constitutional rights have been violated. But the 2017 case Ziglar v. Abassi, which involved an allegation of constitutional violations arising from detention after the Sept. 11 terrorist attacks, declined to find a remedy in cases that give rise to “a new context” that involves “special factors.”

The Fifth Circuit interpreted Abassi to preclude the Mexican parents from suing due to special factors like national security, law enforcement, and diplomatic relations.

Now the justices must decide if the lower court was right and, if not, where to draw the line when it comes to officer immunity.

Lines, real and imagined

During this week’s hearing, some of the justices asked if bullets don’t stop at the border, why should an officer’s liability for rogue actions? Assuming this was a case of excessive force, they expressed skepticism for arguments that the Hernandez family could have no relief simply because the boy happened to be on Mexican territory when shot.

The family’s attorney, Stephen Vladeck, argued that there was no reason to view this case as “a new context” or beyond national borders because the agent himself was on American soil and so his actions “touch and concern” the United States, like other federal lawsuits would. But the agent’s attorney, Randolph Ortega, took the opposite view. “I believe that the border is real. It’s a real line. And it can’t be extended. The Constitution cannot be extended into a foreign country,” he contended.

“Yes, it is a real line,” conceded justice Elena Kagan. “And, you know, one way to line-draw is find a real line, I suppose.” Yet she seemed to doubt that a constitutional matter could be decided differently depending on whether a bullet landed within three inches of the border as opposed to three inches beyond it.

Ortega warned that a finding against his client would lead to liability for US agents throughout all of Mexico. He said that any US officer, even one hundreds of miles from a border but operating a drone flying over foreign soil would end up liable. The lawyer also argued that a finding subjecting his client to liability would have a chilling effect on border patrols, an argument that was met with complete derision by justice Stephen Breyer.

“So far, what you’ve said is: It will freeze the border patrol, to which I think, good. I don’t think there’s an American who—anywhere in the world who wouldn’t want to stop the kind of action here—so that doesn’t seem a factor cutting against,” the justice told Ortega.

The justices also weren’t sold on Ortega’s arguments, which are supported by the Department of Justice, that it would create chaos in American courts to allow the Hernandez family to sue. Justice Brett Kavanaugh, for example, challenged the contention. What’s so complicated about a case involving a US agent who was on US soil being a defendant in an American court, he wondered. “I guess the chaos argument’s not resonating with me,” Kavanaugh told Ortega.

What did resonate with Kavanaugh, and also chief justice John Roberts, it seemed, was the point Ortega and the DoJ are making about this case presenting “a new context” with special factors, like national security and diplomacy, that arise only because two nations are involved and weren’t contemplated in prior cases.

Speaking with one voice

Roberts raised his concerns early in the hearing, asking if it wasn’t problematic for different US government entities to be speaking with multiple voices on this matter. If a federal investigation found Mesa wasn’t using excessive force and the court found he could be held liable for a constitutional violation, wouldn’t it undermine the consistency of the American message to Mexico?

“So that in terms of our relations with Mexico, we’d have one agency saying this was not inconsistent with policy. We’d have the court saying it is. And that is the type of thing that makes it at least a new context…At least with respect to foreign relations, I thought the country was supposed to speak with one voice,” Roberts told the Hernandez family’s attorney.

The “one-voice doctrine,” which posits that government branches must send a unified message, has been called “a myth” by some legal scholars who say it’s unsupported by the constitutional framework of separation of powers. But it is “a mainstay” of foreign relations jurisprudence and has played into high court decisions in cases about the allocation of foreign relations authority among the president, Congress, courts, and states.

The principal deputy solicitor general, Jeffrey Wall, arguing for the DoJ in support of Mesa, emphasized Roberts’ point about one voice when it was his turn to argue. He flipped the script and turned the questioning on the justices, asking Kagan, who minimized consistency concerns:

Do you really think that the next time we go in to talk to Mexico and we take a position on something at the border they won’t say, how is your representation credible? You told us last time that your officer didn’t do anything wrong. And your own courts, potentially even your Supreme Court, told you you were wrong. I think it does directly undermine the credibility of the executive branch in working with a foreign government.

Kagan replied quickly with her own query, asking, “Why wouldn’t the United States then say, you know, we live in a country in which courts play an important role in determining whether conduct is lawful. And that’s not an embarrassment to the United States or to the executive branch?”

Still, Roberts certainly didn’t appear to share his colleague’s certainty, and it may well turn out that the court and the executive branch—which found Mesa didn’t use excessive force—do speak with one voice.

 

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