On June 7, 2010, a Mexican teenager, Sergio Hernández Guereca, was playing a game with friends at the U.S.-Mexico border. The objective was to cross the border, touch the fence that separates the two countries, and run back. In the early evening, a U.S. Border Patrol agent shot and killed Hernández, who had fled back to Mexico after one of his friends was detained. On Tuesday, the Supreme Court of the United States ruled in the case of Hernández v. Mesa that Hernández’s family will not be able to sue the Border Patrol agent responsible for the death of their 15-year-old son, a move that could allow agents to use force without facing legal repercussions.
The government argued before the high court that the agent, Jesus Mesa Jr., was authorized to use force because the teens had thrown rocks at him and his fellow border agents — a claim from the government that is disputed by Hernández's family and other accounts. A U.S. Customs and Border Protection memo said that between 2010 and 2014, CBP agents were assaulted with rocks 1,713 times, to which they responded with deadly force 43 times.
At issue in the case was whether the justices should apply a 1971 ruling that found that federal officials who violate the Constitution could be sued. Resulting from Bivens v. Six Unknown Named Agents, a Bivens motion allows for victims to sue for damages if a federal officer has violated their constitutional rights under the Fourth Amendment, which bars unlawful search and seizure; Fifth Amendment, which established due process; or Eighth Amendment, which prohibits cruel and unusual punishment. But "not long after the Supreme Court handed down Bivens," Vox notes, "the court took a sharp right turn — and it’s steadily moved rightward ever since."
In the majority opinion, Justice Samuel Alito wrote that "a cross-border shooting is by definition an international incident; it involves an event that occurs simultaneously in two countries and affects both countries' interests." Given that Hernández was a Mexican citizen in Mexican territory when he was shot, the protections of the U.S. Constitution do not apply to him, Alito wrote.
Tuesday’s 5-4 decision reflects the hard-line stance the Trump administration has employed at the southern border — especially given Trump has installed two new conservative justices to the bench during his presidency. "The gravity of this ruling could not be clearer given the Trump administration's militarized rhetoric and policies targeting people at the border. Border agents should not have immunity to fatally shoot Mexican teenagers on the other side of the border fence. The Constitution does not stop at the border," ACLU attorney Lee Gelernt said in a press release.
The Mexican government filed a brief with the Supreme Court urging the justices to hear the case. The brief said that the "international human rights obligations" the U.S. has to Mexico, as well as "the fundamental right not to be arbitrarily deprived of life" had "been violated. A nation's obligations to respect human rights do not stop at its borders but apply anywhere that the nation exercises effective control."