The US Supreme Court appeared divided Tuesday as it weighed a thorny cross-border case involving the death of a young boy shot on Mexican soil by an American border patrol agent standing on the US side of the frontier.
At issue before the eight black-robed justices is whether the family of 15-year-old Sergio Hernandez Guereca has the constitutional right to sue the agent who killed him in American courts.
And while the boy’s family received a sympathetic hour-long hearing, the justices appeared evenly split about their right to sue.
The case lands before the Supreme Court with bilateral tensions running high over President Donald Trump’s call for a border wall to keep out Mexican migrants.
Hernandez was shot dead on June 7, 2010. He and three friends had been playing in the dry riverbed of the Rio Grande that separates the Mexican city of Ciudad Juarez from its Texan neighbor El Paso.
The youths were racing up the concrete embankment to touch the barbed-wire fence on the US side of the border, and racing back down, when Hernandez was shot in the head by border patrol agent Jesus Mesa.
Mesa later recounted that Hernandez and his friends had refused to obey his order to stop the game and had thrown rocks at him. According to the teen’s family, he was unarmed and presented no danger.
US federal law protects citizens against disproportionate use of force by law enforcement, but because the victim was a Mexican national, and died in Mexican territory, the justice system has until now prevented his family from suing the border agent in American courts.
Speaking to AFP at her small home in Ciudad Juarez, the boy’s mother Guadalupe Guereca said she wants just one thing: “Justice.”
“I am fighting for my son but also for other people who have suffered in similar cases,” said the 59-year-old.
Supported by the Mexican government, as well as Amnesty International, the boy’s family succeeded in taking its case to the Supreme Court.
The US federal government is backing Mesa, concerned that allowing Hernandez’s family could unleash a torrent of lawsuits over actions taken by Americans outside the country.
Bob Hilliard, whose firm Hilliard, Munoz, & Gonzales is representing the Hernandez family, argued Tuesday that “this tragic case is one of the most simplest extraterritorial cases this Court will ever have in front of it for five reasons.”
“First, all of the conduct of the domestic police officer happened inside the United States. Second, it was a civilian domestic police officer. Third it was a civilian plaintiff, not an enemy combatant. Fourth, it was one of the most fundamental rights, the right to life. Fifth, the government of Mexico supports the claim.”
The unmarked border runs through the middle of the Rio Grande culvert, whose banks are concreted up and topped with two fences — one on the Mexican side and one on the American.
Several justices wondered aloud if there could be a way for US law to be applied a few meters over the border — citing the fact that maintaining the space between the culvert’s fences is currently carried out in cooperation between the US and Mexico.
But that idea was fiercely opposed by attorneys representing Mesa, and the federal government.
“I understand that the maintenance of the culvert is a joint maintenance; however, the laws of the United States do not apply beyond the middle of the culvert,” argued Mesa’s lawyer, Randolph Ortega.
“Wars have been fought to establish borders. The border is very real,” Ortega said.
The Supreme Court justices also voiced concern that a ruling in favor of the teen’s family would set a precedent.
“Are we, in deciding for you, deciding as well that anyone who suffers a drone strike can come to New York and bring a law case?” asked the progressive justice Stephen Breyer.
Debate focused notably on a 2008 Supreme Court ruling, which gave an inmate at Guantanamo Bay the right to challenge his detention before a US court.
But Ortega argued the cases are fundamentally different in that the United States exercises control over the military base in Cuba.
The Hernandez case sparked protests in Ciudad Juarez and a diplomatic mini-crisis between the neighboring countries.
According to Hilliard, US border patrols have fatally shot at least eight Mexicans between 2006 and 2016 in cross-border incidents.
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