Argument preview: Justices take on issues arising out of cross-border shooting
Sergio Hernández at his elementary school graduation (Courtesy of the family of Sergio Hernández)
The militarization of the U.S./Mexico border in the name of immigration enforcement has had casualties. Amy Howe on SCOTUSBlog previews the oral argument on February 21 in a case before the U.S. Supreme Court that deals with one of the casualties. In Hernández v. Mesa, the parents of Sergio Hernández, a Mexican teen shot by a U.S. Border Patrol agent while standing on Mexican soil, are seeking to sue the agent responsible for their son’s death in U.S. courts. Supporting Mesa, the federal government insists that allowing suits like this one could “significantly disrupt the ability of the political branches to respond to foreign situations involving” the U.S.’s national interest, while the Mexican government – supporting the parents – suggests that shutting the lawsuit down could harm U.S.-Mexico relations.
The questions presented to the Court are
(1) whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States;
(2) whether qualified immunity may be granted or denied based on facts – such as the victim’s legal status – unknown to the officer at the time of the incident; and
(3) whether the claim in this case may be asserted under Bivens v. Six Unknown Federal Narcotics Agents.
KJ