Will the Supreme Court Authorize Open Warfare at the Mexican Border?

US-Mexican Border

By James A. Kidney

The Supreme Court appeared split 4-4 Tuesday during oral arguments over whether the family of an unarmed Mexican teenager can sue the U.S. Border Patrol agent who shot and killed him.  The agent was on U.S. soil firing into Mexico to kill the boy.  You can find the details here and here.  The matter was being argued before the Court.  A decision is expected by summer.  But the description of the argument raises troubling issues.

Foremost among them, but not directly raised in the dignified court arguments 20,000 feet above reality:  Is it OK for the Border Patrol and civilians to kill Mexicans across the border without liability to the families of those murdered, or even to the country whose land was invaded by U.S. bullets?

Briefly, an unarmed teen-aged Mexican was playing with friends at a culvert dividing the two countries.  The game was to touch the U.S. side of the culvert and run back to the Mexican side.  It sounds like nothing more than a game of “I dare you.”

But Border Patrol Agent Jesus Mesa, patrolling the U.S. side, was perturbed by such playfulness.  He probably saw it as “disrespecting” the law.  (When a lawman feels disrespected, he claims it’s not him who is hurt, but the law.) He grabbed one boy as he reached the U.S. side but before he could run back to Mexico.  When the boy’s friend, Adrian Hernandez Guereca, peered out from the Mexican side to see what was happening, Mesa shot and killed him.

Mexican forensic investigators examine the body of 14-year-old Sergio Adrian Hernandez Guereca, under the Paso Del Norte border bridge in Ciudad Juarez, northern Mexico, Monday, June 7, 2010. He was shot by a U.S. Border Patrol agent. (AP Photo)

Mesa first claimed that he was provoked by the teen-ager throwing rocks at him.  A cellphone video proved Mesa a liar. Apparently, the only provocation for the killing was that Adrian looked at Mesa throttling his friend.  Boom. Dead.

Adrian’s parents tried to bring a damage suit against Mesa in U.S. courts.  So far, their case has been thrown out.  The Supreme Court will affirm that decision, send it back for further consideration, or reverse the decision.  A 4-4 vote leaves the lower court ruling standing.  In which case, no justice for Adrian.

The legal issue is whether the family of a Mexican boy who was standing on Mexican soil can bring a personal liability lawsuit in the U.S. against a border agent who fired from the U.S. side and killed the boy.  Lower courts have said no.  The Mexican was in Mexico and has no right to access U.S. courts, they declared.

As Justice Ginsburg noted in argument, this case doesn’t really involve whether Adrian was standing in Mexico or the U.S.  Agent Mesa was in the U.S.  He fired his gun from the U.S.  The gun was issued to him by the U.S. Border Patrol.  Mesa was trained (maybe poorly) in the U.S.  Only the dead teen-ager, who can’t testify, was in Mexico.  The bullet went into Mexico and killed him.

This would seem to any lay person a clear case of conduct in the U.S. warranting suit in the U.S. courts.  Ironically, if Adrian had violated the law and crossed the border when he was shot, his family likely would have succeeded in suing Mesa.  Since Adrian did not violate the immigration laws, however, his family is out of luck.

The conservative justices were worried not about whether Adrian’s family could obtain justice against Mesa and the Border Patrol, but whether allowing it to do so would open the door to victims of drone attacks, in, say, Yemen, suing U.S. personnel operating the drones in the United States.  This probably is not the first issue a normal person would think of when considering justice for Adrian’s family.

The first issue I would think of, aside from how to give Adrian’s family a fair hearing in a U.S. courtroom, is whether upholding the lower court decision means anybody can shoot a Mexican across the border  and not face any consequences.  Or, at least, no liability to survivors of the dead Mexican.   In other words, can civilians and civil servants wage war against Mexico by killing Mexicans at will from across the border?  (Can we assume the Border Patrol would discipline a reckless agent, or that the police would arrest a murderous civilian?  In this climate, that is also uncertain).

It is true that lawyers, especially judges, must think about the logical consequences of declaring a legal principle.  Good for the conservatives for thinking ahead.  But it also is a rule that cases should be assessed on their own facts.  Don’t make a big case out of a little one if it can be avoided.  Just decide what is before you.  It’s harder to do that on the Supreme Court, but the justices are fully capable of doing so.  The Court often uses the specific facts of the case before it to punt on larger issues, making what the media and public believe will be big decisions into little ones.

Here’s an idea for the justices:  Recognize that the U.S. shares a border with only Mexico and Canada.  Recognize, too, that it doesn’t share a border with countries in the Middle East, Africa, Europe, Asia and wherever else your Supreme Court desk globe defines a country.  Shared borders raise the possibility of many problems and issues that need not be addressed for countries with whom the U.S. does not share a border. (Off point:  having a formally declared war against ISIS also would help alleviate the legal concerns about Yemen that troubled the conservatives.)

Mexico indicted Agent Mesa for murder.  But the U.S. won’t deport Mesa.  This happily allows the Court (and Mesa) to look on the bright side if it finds for Adrian’s family:  Mesa will face a court in the U.S., not one in Mexico.  It’s kind of a win-win.

So, Justices, follow the rules of judicial power.  Think small.  Think according to the facts before you.  Do justice for young Adrian.  Don’t worry about Yemen.

(See New York Times editorial on this subject.)

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