The Supreme Court on Tuesday said it would hear a case that will determine whether the families of Mexican teenagers killed by U.S. Border Patrol agents in cross-border shootings can sue in U.S. courts.
The justices worked on the issue once before. Their renewed involvement follows contradictory lower court decisions in cases from Arizona and Texas.
At issue is whether congressional approval is needed before families can sue on behalf of foreign victims who were injured on foreign soil. The court took the case from Texas, but its outcome will influence the Arizona case.
It will be argued during the term that begins in October.
The Supreme Court previously considered the death of 15-year-old Sergio Adrian Hernandez Guereca, who was shot and killed in 2010 on the Mexican side of the wide culvert that separates El Paso, Texas, from Juarez.
Border agent Jesus Mesa was patrolling the area when Hernandez and his friends ran up the steep embankment on the U.S. side to touch the tall fence and then raced back to Mexico.
Mesa had said he and other agents were under attack from a rock-throwing gang, but cellphone videos of the altercation indicated that that was not true. Mesa grabbed one of the other youths and then, while holding him, shot at Hernandez, killing him as he peered from behind a bridge piling.
The U.S. Court of Appeals for the 5th Circuit has twice held that the suit cannot go forward.
It was a “tragic event,” Judge Edith Jones wrote, but not one for which the boy’s family can sue Mesa.
Congress hasn’t created “private rights of action against federal officials for injuries to foreign citizens on foreign soil,” Jones wrote. “It is not credible that Congress would favor the judicial invention of those rights.”
The U.S. Court of Appeals for the 9th Circuit went the other way in the Arizona case.
U.S. Border Patrol Agent Lonnie Swartz fired across the border in 2012 and killed 16-year-old Jose Antonio Elena Rodriguez, who had been walking down a street in Nogales, parallel to the border fence.
Swartz was charged with murder and was acquitted, although the government has indicated it may retry him for manslaughter. In the meantime, the teenager’s mother filed suit against Swartz, and a divided panel of the 9th Circuit said her suit could continue.
“This case involves the unjustifiable and intentional killing of someone who was simply walking down a street in Mexico and who did not direct any activity toward the United States,” wrote Judge Andrew Kleinfeld.
The courts’ disagreement concerns a 1971 Supreme Court decision, Bivens v. Six Unknown Named Agents. The court allowed people to sue over unconstitutional actions by federal officials, even if such suits had not been explicitly authorized by Congress.
But since then, the court has been more likely to restrict the right than expand it. The justices looked at the Hernandez case but did not reach a conclusion in 2017.
The justices said it would be “imprudent” to decide until the 5th Circuit reconsidered the case in light of a separate Supreme Court decision issued about the same time.
In that case, the high court reinforced protections for government officials, who are generally shielded from civil lawsuits when they have acted in good faith in carrying out their duties.
The case accepted Tuesday is Hernandez v. Mesa.
(c) 2019, The Washington Post · Robert Barnes