AZMEX SPECIAL 16 OCT 2016
Supreme Court action in shooting case could have broad implications
Sara Sanchez , El Paso Times 4
:33 p.m. MDT October 15, 2016
http://www.elpasotimes.com/story/news/national/2016/10/15/us-supreme-court-decision-shooting-case-could-have-far-reaching-implications/92098318/
Law enforcement officials and constitutional law experts will be watching closely as the U.S. Supreme Court prepares to hear arguments in an El Paso case that involves the fatal shooting of a Mexican teenager by a U.S. Border Patrol agent.
The court's decision, according to legal scholars, could have far-reaching implications as justices could decide whether a constitutional amendment that guards against the unjustified use of deadly force also encompasses border areas patrolled by federal agents, leaving them subject to lawsuits.
The nation's highest court announced this week that it would hear the case, which stems from a 2010 incident in which U.S. Border Patrol agent Jesus Mesa Jr. shot and killed 15-year-old Sergio Adrián Hernández Güereca.
A date for the hearing has not been set for the case that could highlight three key questions: Do the Fourth Amendment's protections against unlawful seizures and unjustified use of deadly force extend beyond the country's borders? Is Mesa immune from being sued since he was unaware that Hernández was not a U.S. citizen? And, can a 1971 case known as Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, which states that federal agents can be sued if they act unlawfully while carrying out their duties, be used as a basis for a lawsuit against the border patrol agent?
"It could be one of the biggest cases (of the term), depending upon how the court rules, and perhaps a crucial test for when private citizens can sue federal officers for damages, as well," said Stephen Vladeck, a University of Texas at Austin professor who specializes in constitutional law.
Hernández was unarmed when Mesa shot him on June 7, 2010. The teenager, and several men, were in a levee along the Rio Grande, which straddles the U.S.-Mexico border.
According to the FBI, Mesa, who was on a bicycle, was detaining someone when the group of men ran into Mexico and began throwing rocks. Mesa fired his gun after the men ignored his order that they stop, officials said.
In a 2010 interview with the El Paso Times, Hernández's family disputed the account. They said that their son was not part of the group throwing rocks.
The fallout from the incident was immediate and received responses from both sides of the border.
Then-Mexican President Felipe Calderón said the shooting was a "disproportionate use of force."
On the U.S. side, the Justice Department launched a civil rights investigation into the incident, which was closed in 2012 because of "insufficient evidence." An internal investigation by the Border Patrol also ended with no action taken against Mesa.
In 2011, Hernández's parents sued Mesa. Last year, the Fifth Circuit Court of Appeals, decided against the Hernandez family, who then appealed to the U.S. Supreme Court.
Attorneys for both sides say the Supreme Court's ruling could influence how federal agents respond to incidents in the areas they patrol.
Steve Shadowen, one of the lawyers for the Hernández family, said this case, and the area in which it occurred, represents a "black hole" in terms of legal protection.
"If Sergio had been in the U.S., his family would be entitled to judicial review of the killing," Shadowen said. "If he had been a U.S. citizen in Mexico, there would be judicial review. But for some reason the Obama administration thinks there's an exception to judicial review if it turns out the person is a Mexican national. We think that's silly."
Randolph Ortega, the lawyer representing Mesa, argues that the biggest issue surrounding the case is extraterritorial jurisdiction, or the legal ability of governments to patrol beyond their defined borders. He said that a ruling in favor of the Hernández family could blur lines.
"If you're using a handgun and a person is 40 yards away and across an international border — if the Supreme Court finds in favor of the appellate, then where is the line drawn? Is it 40 yards, 400 yards, 400 miles; where does it stop?" Ortega said. "That creates a peculiar and dangerous situation not only for law enforcement but for the entire United States."
This is not the first El Paso case to reach the Supreme Court.
Two U.S. Supreme Court cases filed by Lawrence Nixon, an African American physician, were instrumental in the fight for voting rights for minorities in Texas in the 1920s and 1930s.
The court in 1927 also weighed in on a dispute in El Paso that determined the boundary between Texas and New Mexico. In 2004, justices decided a case that determined whether a Mexican man could sue the Drug Enforcement Administration after he was acquitted in a case that accused him of torturing and murdering a DEA agent. The agency had hired Mexican nationals to kidnap the man from his home in Mexico and bring him to the United States to stand trial.
Rory Little, a law professor at the University of California Hastings College of the Law, said people who are looking to the court to find justice for Hernández may not find what they are seeking in this case because the justices will have a narrow focus.
"It seems wrong for the federal agent to shoot, but the question the court is going to address is: How does the Constitution apply on, outside, or at all on the border?," Little said. "They're not going to rule on the question of did the agent do the right thing."
Supreme Court experts say it's hard to predict an outcome for the case.
One of the nine seats on the Supreme Court remains vacant after Justice Antonin Scalia's death in February. President Barack Obama nominated Chief Judge Merrick Garland to the court but Senate Republicans have refused to hold a hearing on the nomination.
Since the case asks three key questions, the implications are also hard to predict, Little said.
The first question that must be answered is whether Bivens v. Six Unknown can be used as a basis for a lawsuit against Mesa, Little said.
If it's determined that the Bivens case can be used, then the court has to answer how far the protections of the Fourth Amendment extend. After they've answered that question, the court then has to determine if Mesa has qualified immunity, which protects federal officials from civil damages.
"Even if the court says the Fourth Amendment extends, the question is: Was it firmly established during the shooting? Are they immune because it wasn't established as he shot Hernández?," Little said.
The Supreme Court may not be the final stop in this case, especially for the family of Hernández.
If the Supreme Court rules in favor of Hernández, the case will be kicked back down to lower courts, where the lawsuit against Mesa will proceed.
"It's a fool's errand to try to handicap the result at this stage," said Vladeck. "But if nothing else, the fact that the Supreme Court took the case at all is a good sign for Hernández, and suggests that at least four of the eight Justices are not completely satisfied with the Court of Appeals' ruling."
Ortega said that Mesa, his client, remains optimistic. Mesa is still employed by the Border Patrol.
"He (Mesa) remains confident that the legal system will find that it's justified and there's no recourse," Ortega said.
Cristobal Galindo, the Hernández family attorney, said the family was relieved when they heard the case was headed to the Supreme Court.
"They were so disenchanted with the process because they believed nothing was happening," Galindo said. "Now that they finally got the day in court, they feel like there's a chance."
Galindo said that if the case does come back to the lower courts, the trial would be in El Paso and would begin as soon as the Supreme Court decision is issued.
"We still have a lot of work to do. It's not over, and the family knows that," Galindo said. "It's a long haul."
Sara Sanchez can be reached at 546-6147; ssanchez@elpasotimes.com; @siempresarita on Twitter. Times librarian Trish Long contributed to this story.
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