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Conservative U.S. justices sceptical in cross-border shooting case

By Lawrence Hurley

WASHINGTON Conservative Supreme Court justices on Tuesday voiced scepticism about extending constitutional rights to non-citizens in a case involving a 15-year-old Mexican shot dead by a U.S. agent from across the border in Texas that could have broad implications.

The court’s ruling in the case argued before the eight justices could affect legal claims filed by non-U.S. citizens arising from executive actions such as President Donald Trump’s travel curbs involving people from seven Muslim-majority countries and from American drone strikes overseas.

With the court evenly split between conservatives and liberals, the matter could be headed toward a 4-4 ruling that would leave in place a 2015 lower court decision to throw out a civil rights lawsuit by the family of Sergio Hernandez against Jesus Mesa, the U.S. Border Patrol agent who shot the teenager.

The case raised several legal questions, including whether or not the U.S. Constitution’s ban on unjustified deadly force applied to Hernandez, a Mexican citizen killed on Mexican soil in the June 2010 shooting at a border crossing between El Paso, Texas and Ciudad Juarez, Mexico.

The Supreme Court potentially could delay action to see if Trump’s nominee to fill a vacancy on the court, conservative appeals court judge Neil Gorsuch, is confirmed by the U.S. Senate. Gorsuch could then potentially cast the deciding vote. A ruling would normally be due by the end of June.

Liberal justices appeared more willing to examine whether some U.S. rights extend to border areas where the U.S. government exercises a certain amount of authority even beyond the border line, as it does in the culvert where Hernandez was killed.

Among the concerns raised by justices was whether non-U.S. citizens injured by drone attacks overseas that are directed from the United States could file similar claims against U.S. officials if the lawsuit was allowed to move forward.

“How do you analyse the case of a drone strike in Iraq where the plane is piloted from Nevada? Why wouldn’t the same analysis apply in that case?” conservative Chief Justice John Roberts asked the Hernandez family’s lawyer, Robert Hilliard.

Justice Anthony Kennedy, a conservative who sometimes sides with the liberal justices in close cases and whose vote could be pivotal in this one, voiced doubt about the family’s arguments to revive the lawsuit during the hour-long argument.


Kennedy indicated the question of how to compensate victims of cross-border shootings is one that the U.S. and Mexican governments, rather than American courts, should resolve.

“You’ve indicated that there’s a problem all along the border. Why doesn’t that counsel us that this is one of the most sensitive areas of foreign affairs where the political branches should discuss with Mexico what the solution ought to be?” Kennedy asked Hilliard.

The security of the lengthy U.S.-Mexico border is a hot topic, with Trump moving forward with plans for a border wall he said is needed to combat illegal immigration.

The case is one of three the justices currently are considering that concern the extent to which the U.S. Constitution provides rights to non-U.S. citizens.

That issue has become more pressing in light of Trump’s January order, put on hold by the courts, to block entry into the United States by people from the seven Muslim-majority countries and refugees. Trump is preparing a rewritten version of the ban.

A 1971 Supreme Court ruling in a case involving federal drug enforcement agents allowed lawsuits like this one in limited circumstances. The court has been reluctant in subsequent cases to extend that ruling to other types of conduct.

Kennedy seemed unwilling to take that step, saying the Hernandez shooting would be an “extraordinary case” in which to allow a lawsuit against a federal official.

Liberal Justice Stephen Breyer said the border area could be viewed as a “special kind of physical place” where U.S. law could extend in certain instances. Fellow liberal Elena Kagan said the border area where Hernandez was shot could be described as a no-man’s land that is “neither one thing or another thing.”

Justice Sonia Sotomayor, another liberal, said to deter such cross-border shootings, “why should there not be a civil remedy to ensure that border police are complying with the Constitution?”

The U.S. Border Patrol has said Hernandez was pelting U.S. agents with rocks from the Mexican side of the Rio Grande before the shooting. U.S. authorities have asserted Mesa shot Hernandez in self-defence.

Lawyers for Hernandez’s family disputed that account, saying he was playing a game with other teenagers in which they would run across a culvert from the Mexican side and touch the U.S. border fence before dashing back.

The FBI also said Hernandez was a known immigrant smuggler who had been pressed into service by smuggling gangs that took advantage of his youth.

(Reporting by Lawrence Hurley; Editing by Will Dunham)