Hernandez v. Mesa Kicked Back Down So Officers Can Continue Killing Without Accountability

The Court joins the game of acting powerless to stop law enforcement from killing children.

It really shouldn’t be okay for Border Patrol to shoot children on either side of the fence. (Photo by Chip Somodevilla/Getty Images)

I know the Travel Ban is the big Supreme Court news today, because discriminating against people based on their religion seems like a thing this country should not do, except for the fact that at least half the people who live in this country think we should do it.

I know the Court’s decision to take the bigoted baker case, coupled with the Court’s ruling on Free Exercise in the Trinity Lutheran case is perhaps the bigger “civil rights” news today. Certainly, gays and lesbians are about to learn that Neil Gorsuch is who they fear Mike Pence to be.

But for those of us concerned with the ability of agents of the state to shoot and kill unarmed children with impunity, the Court remanding and turning a blind eye to the tragedy of Sergio Hernandez stands out as the largest moral failing of the day.

Hernandez v. Mesa is the case where a border patrol f**ktard, Jesus Mesa, shot and killed a 15-year-old boy, Sergio Hernandez, for the crime of touching the border fence, running away, and maybe throwing some rocks depending on who you believe. Mesa was standing in the U.S. when he fired his weapon into Mexico, striking and killing Hernandez who was a Mexican citizen.

There are any manner of cute legal games we can play with those facts. The Court was asked to consider whether Hernandez had an Fourth or Fifth Amendment protections, given that he was a child murdered by a U.S. agent, or whether he was out of luck because he was standing close enough to the U.S. to be in range of our armed executioners wearing badges. The Court was also asked whether Mesa was entitled to qualified immunity, as a U.S. official doing his job, or whether the job of shooting and killing an unarmed teenager is so outside the purview of U.S. Border Patrol’s job that Hernandez’s family could pierce the veil of immunity.

The Court declined to rule on any of these merits. Instead, per curiam, they kicked the case back down to the Court of Appeals, to be decided in light of the Court’s recent decision in Ziglar v. Abbasi. Abassi is the recently decided 9/11 case. The Court ruled that, while the treatment of certain detainees held for no reason after the attacks was “tragic,” most of their claims against their tormentors could not go forward.

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Today, the Court used a similar platitude before booting the case back down:

This case involves a tragic cross-border incident in which a United States Border Patrol agent standing on United States soil shot and killed a Mexican national standing on Mexican soil.

The tragedy is that nine of the most powerful people in the country cannot see their way clear to giving victims of these United States a clear path to justice. Agents of the state — our state, in our names — can destroy you. They can violate your rights. They can kill you. But you cannot hold those officials accountable. The officials have immunity, you can have a warm glass of death.

What good is a right if the Court will not hold people personally accountable for violating those rights? What good is the Constitution at all if government officials can wipe their asses with it while violating the protections enshrined in it, and not be held accountable?

What the hell kind of country are we living in when U.S. agents can shoot an unarmed kid, say “oh, technically I was on this side of the line, so you can’t get me, ha ha hahaha,” and have that be a reasonable claim for immunity? Games like that are things that kids play, it’s not something that U.S. law enforcement officers should be Constitutionally allowed to get away with.

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But, here we are again. Law enforcement murders an unarmed teen, and the entire legal system throws up its hands and asks “what can we do?”

We could stop being a tragic miscarriage of justice, that’s what we could do.

Earlier:


Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.