It really shouldn’t be okay for Border Patrol to shoot children on either side of the fence. (Photo by Chip Somodevilla/Getty Images)
Can a U.S. border patrol agent stand at the boundary between the United States and Mexico and use Mexican children as target practice?
That’s the issue at the heart of Hernández v. Mesa, which will be argued in front of the Supreme Court today. The case will be dressed in the language of Fourth and Fifth Amendment concerns, but don’t get it twisted. U.S. border agent Jesus Mesa shot and killed 15-year-old Sergio Hernández. Mesa was standing on the American side, Hernández was 60 feet away in Juarez, Mexico. Is anybody in Mexico allowed to do anything about that, or is that just the price Mexico pays for the audacity of placing its sovereign nation within range of our violent law enforcement?
Hernández and his friends were apparently playing a game of “chicken” at the border. The boys were trying to run up to the U.S. fence, touch it, and run back. Mesa rode by on a bicycle and apprehended one of the boys. That’s when the stories diverge. Hernández’s family claims that Hernández ran back to Mexico and hid behind an highway column, peeked out, and was shot in the head by Mesa. Mesa claims he was “surrounded” by boys who were throwing rocks at him, and shot in self-defense.
As I’ve said repeatedly, if you generally believe law enforcement’s side of events, you are almost definitely white and most probably an idiot. Law enforcement lies all the time. And it appears they’ve done so here (duh). Cell phone footage contradicts Mesa’s version of events.
The facts are important, because again border patrol playing skeet shoot with Mexican children is what this case is really about. But the Supreme Court won’t make any factual findings, instead they’re hung up on whether Hernández’s parents have the right to sue. Really, the Court will tell us if ANYBODY can hold Mesa to account.
While the death took place in Mexico and Mexican officials wanted Mesa extradited to Mexico, the Obama administration refused. Customs and Border Patrol took no action against Mesa. Officials claim they have their own footage that backs up Mesa’s surrounded by rock throwers and in fear of getting a boo-boo defense. Of course, they haven’t released said footage to the public (see above re: liars), it’s not like Mesa was ever put on trial on the American side, because all he did was shoot a brown child.
If Hernández’s family can’t sue Mesa in the United States, then Mesa gets away with it. If he can get away with it, all border patrol can get away with it. I don’t think I’m going out on a limb here to suggest that President Trump will handle extradition requests from Mexican authorities no better than President Obama.
I really don’t think international murder investigations should be resolved just because Customs gives you a green light as you pass your story through their bulls**t detector.
Of course, arguing that the Constitution protects anybody besides straight-white-male-Christians is a little bit difficult, just at the moment.
Hernández’s lawyers argue that the U.S. had functional control over the area where Hernández was shot, and thus Hernández should receive Fourth Amendment protections. They seem to have good precedent for this: Boumediene v. Bush held that Guantanamo detainees could challenge the legality of their detainment.
Hernández’s lawyers also argue that head-shooting a 15-year-old is a “clearly established” violation of constitutional rights, so Mesa should not have qualified immunity. And they argue that this case would be a straightforward application of the Bivens exception that allows private individuals to sue federal officers.
Those are weaker arguments, as this Court seems reluctant to extend Bivens, and I think this Court would actually make love to qualified immunity if they could do so without piercing the veil. The 5th Circuit kicked the Hernández family out of court, so a tie goes to the shooter, and I wouldn’t hold my breath for potential-Justice Gorsuch to come in and save the day for brown children living on the wrong side of the river.
Mesa has a strong case, but his lawyers are making the kinds of arguments should embarrass this country. Here’s Randolph Ortega, lawyer for Mesa and the Border Control union, arguing that the U.S. Constitution shouldn’t extend past the midpoint of the Rio Grande, and that a ruling against Mesa would be bad for U.S. interests. From NPR:
“How far does it extend? Does it extend 40 feet? As far as the bullet can travel? All of Juárez, Mexico? All of (the state of) Chihuahua, Mexico? Where does the line end?”
Backed by the federal government, he suggests that a ruling in favor of the Hernández family would mean foreigners could sue over a drone attack.
A few of points worth making, and then I’m done with this fool:
* YES, PEOPLE WE DRONE STRIKE SHOULD PROBABLY HAVE SOME RECOURSE OTHER THAN THE EMP CHARGE FROM THE MATRIX.
* Yes, the Constitution should extend at least as far a bullet fired from within our territory. If you don’t like it, then STOP FIRING BULLETS INTO OTHER PEOPLE’S COUNTRIES.
* We only need the above rules because the U.S. won’t extradite people to stand trial for their crimes. Jesus Mesa should not be in front of the Supreme Court, he should be on an episode of Locked Up Abroad.
Argument preview: Justices take on issues arising out of cross-border shooting [SCOTUSblog]
Supreme Court To Decide If Mexican Nationals May Sue For Border Shooting [NPR]
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 [email protected]. He will resist.