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Justices Revive Suit Against US Agent Who Fatally Shot Mexican Teenager

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U.S. Supreme Court building.March 23, 2016. Photo by Diego M. Radzinschi/THE NATIONAL LAWJOURNAL.

The U.S. Supreme Court on Monday revived a Mexicanfamily's attempt to hold a U.S. Border Patrol officer liable fortheshootingdeathof their unarmed teenage son on foreignsoil, and ordered reargument next term in two unrelated immigrationcases.

The justices,in an unsignedopinionin which three justices dissented fordifferent reasons, vacated an appellate court ruling that hadprotected the border agent in the family's lawsuit.

Reargument is rare,and it has been especiallysoduring the Roberts Court. The twoimmigration-related cases that the justices will rehear in the fallwere argued after Justice Antonin Scalia's death but before JusticeNeil Gorsuch joined the bench. The reargument suggests the courtwas deadlocked 4-4 in those disputes.

Jennings v. Rodriguezasked the court todecide whether immigrants awaiting deportation are entitled to bondhearings after six months of detention.Sessions v.Dimayaraises a question about the definition of crimeof violence in the context of immigration law.

The border shooting caseHernandez v.Mesaplayed out in the high court against the backdrop ofPresident Donald Trump'sinsistencethat Mexico will payfor a border wall and his criticism of that country over unlawfulimmigration.

The majority said the lower courtthe U.S. Court ofAppeals for the Fifth Circuitshould reconsider its decision inlight ofthe justices June 19rulinginZiglar v.Abbasiand how that decision affects the parents' claimthat the Fourth Amendment ban on the use of excessive force appliesto their case. TheZiglaropinion addressed whena civil tort actiona so-calledBivensclaimmay bebrought against public officials.

TheZiglar4-2 majority declined toextendtheBivensremedynamedafter a 1971 Supreme Court caseto post-Sept. 11 claims againstformer FBI Director Robert Mueller III and former U.S. AttorneyGeneral John Ashcroft. In that case, a group of Arab and Muslim menalleged federal officials helped craft and implement an unlawfuldetention program that was based on race and national origin.

Thecourt'sdecisioninZiglarreversedarulingby theU.S. Court of Appeals for the Second Circuit that had allowedclaims against Mueller, Ashcroft and other officials to moveforward.

In the border shooting case, the majority said theFifth Circuit erred in granting the border patrol officer immunitybecause it relied on facts the officer learned after the incident,not at the time of the incident.

The facts alleged in the complaint depict adisturbing incident resulting in a heartbreaking loss of life, theSupreme Court majority wrote on Monday. Whether petitioners mayrecover damages for that loss of life in this suit depends onquestions that are best answered by the Court of Appeals in thefirst instance.

Justice Clarence Thomas dissented, writing that hewould have affirmed the lower court decision dismissing theparents' lawsuit.Justice Stephen Breyer, joined byJustice Ruth Bader Ginsburg, also dissented. Breyer said he wasconvinced the Mexican teen was protected by the Fourth Amendment'sprohibition on the use of excessive force. He added he would sendthe case back to the lower court to considertheBivensand qualified immunity questions.

In theHernandezcase, the appealscourt held that the Fourth Amendment's protection against excessivedeadly force did not apply because their son was a Mexican citizenwith no significant voluntary connection to the UnitedStates.

The family and the Border Patrol officer disagreed onwhat happened on the critical summer day in 2010 when SergioHernandez was with three friends in the concrete culvert separatingEl Paso, Texas, and Juarez, Mexico.

The family contends that Sergio and his friends wereplaying a common game in plain view of the Paso del Norte Port ofEntry, one of the busiest border crossings in the United States.They dared each other to run up the culvert's northern incline,touch the U.S. fence, and then scamper back down to the bottom.

Border guards patrolling the culvert on bicyclesseized one of the boys while Sergio ran to a pillar beneath thebridge on the Mexican side. Border officer Jesus Mesa, formally inthe United States, according to their account, fired his pistol andhit Sergio in the head, killing him instantly. The agents did notattempt to get medical aid for him but got back on their bicyclesand left.

The border officer countered that his use of force wasa result of Hernandez and the other individuals surrounding him andthrowing rocks at him while refusing his verbal commands to stop.In fact, he added, Sergio had been arrested twice before for aliensmuggling and had been given voluntary returns to Mexico due to hisjuvenile status. The FBI released a statement supporting Mesa'sversion of the incident. The United States, after an investigation,declined to prosecute Mesa.

Duringarguments in February, the justicesappeared divided.

Justice Elena Kagan said the heartlandofBivens was a claim that a law enforcement officerused deadly force in violation of the Fourth Amendment. We don'thave to make up anything new, she said. We don't have to extendit. That's justBivens. And she appeared skepticalof the government's argument that permitting a claim in this casewas fraught with foreign relations issues because Mexico actuallywas supporting the family's arguments.

Justice Anthony Kennedy, however, noted that theSupreme Court since 1988 had not recognized asingleBivensaction. He suggested that one ofthe most sensitive areas of foreign affairs should be discussed bythe political branches with Mexico to find a solution. It seems tome that this is an extraordinary case for us to say there'saBivensaction in light of what we've donesince 1988 where we haven't created a single one, he said.

The Mexican government, former officials of the U.S.Customs and Border Protection agency, Mexican jurists, legalhistorians, the American Immigration Council and others filedbriefs supporting Hernandez, who was represented by Robert Hilliardof Corpus Christi, Texas.

Mesa, the agent, was represented by Randolph Ortega ofEl Paso, Texas.

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Marcia Coyle, based in Washington, covers the U.S. SupremeCourt. Contact her atmcoyle@alm.com. OnTwitter:@MarciaCoyle.