Fault Lines
29 June 2017

Does the Constitution End with a Bullet in Sergio Hernandez Guereca?

February 23, 2017 (Fault Lines) — The story of how 15-year-old Sergio Hernandez Guereca was killed in 2010 by Border Patrol Agent Jesus Mesa is awful, and presented at its most empathetic by Cristian Farias and Roque Planas at Huff Post.

Her 15-year-old son, Sergio Hernández, had been playing with a group of boys along the river, when U.S. Border Patrol agent Jesús Mesa Jr. went to apprehend them, apparently viewing them either as drug smugglers or people trying to cross the border illegally. He grabbed one of the boys on the U.S. side of the river canal, as the rest fled. Sensing that someone was throwing rocks, he turned toward Sergio, who had taken cover behind the bridge piling on the Mexican side of the river, and shot him in the face.

Mesa claimed he murdered the boy because he was in fear of his life. Video showed otherwise. How much clearer can a bad shoot, an act of brazen, horrific violence be than killing a boy, shooting him in the face, for nothing? Yet, this case, Hernandez v. Mesa, was argued before the Supreme Court as the Fifth Circuit, en banc, dismissed the action.

There are, on rare occasions, fact patterns that defy well-worn legal doctrines because they are so unusual and horrible that it seems almost impossible that the law can afford no remedy. This is such a case.

Denied any legal recourse by lower courts that said Sergio Adrián Hernández Güereca lacked constitutional protection inside Mexico, the 15-year-old’s parents received encouraging support from the high court’s liberal justices during an hourlong oral argument that could prove pivotal.

“This case has, as far as the conduct is concerned, United States written all over it,” said Justice Ruth Bader Ginsburg, citing the actions of Border Patrol agent Jesus Mesa, who was in El Paso when he shot Hernandez in the head, killing him instantly, in 2010.

Justices Stephen Breyer and Elena Kagan stressed the unique nature of the incident, which occurred in a culvert containing the dry river bed of the Rio Grande. Justice Sonia Sotomayor suggested there should be some type of civil remedy available to the family.

And indeed, this case surely feels as if there must be some remedy available. After all, how can it be ignored that a United States Border Patrol Agent brazenly murdered this boy? Yet, that was only one side of the problem.

But the court’s conservative justices said no such constitutional claim for damages against a federal official has been allowed for almost 30 years. They warned that creating one in relation to the contentious U.S.-Mexico border could lead to other claims by foreign nationals outside the U.S. —perhaps in the case of drone strikes,Chief Justice John Roberts said.

Justice Anthony Kennedy, most often the swing vote on the court, said determining the rules of engagement along the border has been a matter for the executive and legislative branches of government to address. “This is one of the most sensitive areas of foreign affairs,” he said.

The implications of the ruling in Hernandez are, to say the least, staggering. The bullet crossed not just a culvert, but a border between two sovereign nations. Hernandez had no established ties to the United States, aside from being within a stone’s throw, or a bullet’s travel, from it. Much as it seems as if the least the United States can do is be accountable for his death, to provide a foreign national the right to sue for a violation of the United States Constitution implicates a wide range of issues that could upend legal doctrine worldwide.

Justice Kennedy suggested during oral argument that the issue of cross-border shootings should be addressed by the political branches. The problem is that there is now no accountability and no remedy. Currently an unarmed boy standing just south of the border can be killed with impunity by an American border agent, but not if he happens to be a few feet to the north. As Justice Ruth Bader Ginsburg asked, “That doesn’t make a whole lot of sense, does it, to distinguish those two victims?”

The Constitution should be broad enough to apply to people like Sergio, and his family should be allowed to sue in American courts.

The New York Times argues, as one might expect, that the the Constitution “should be broad enough,” even though it offers no doctrinal basis to distinguish how relief could be provided Hernandez but denied innocent victims of drone strikes or, to apply the problem to more politically sensitive issues of the day, the denial of due process to non-permanent legal resident aliens seeking entry to the United States.

As Justice Kennedy suggests, a political solution, meaning an act of Congress specifically authorizing suit under the peculiar circumstances here, would be the solution that enables the Hernandez family, and anyone else in their circumstances, to obtain compensation for the killing of Sergio. It seems so obviously right.

But in the hands of the Supreme Court, the concern is the creation of legal doctrine that would extend rights under the Constitution to people and places who don’t enjoy them, who have never enjoyed them. The Constitution may apply to those with sufficient ties to the United States no matter where situated, and to anyone physically within our borders, but it would be ruinous to afford our constitutional rights to everyone everywhere no matter what.

Is this another instance of hard cases make bad law, or that the law is incapable of providing a remedy for every ill people can do to one another? Is there a middle ground that can distinguish the context and somehow differentiate a killing as here with the plethora of similar, but slightly (or vastly) different issues that arise under an infinite number of variations of the fact pattern?

As Justice Ginsburg asks, does it “make a whole lot of sense, does it, to distinguish those two victims?” The answer, it seems, is that it does. Very much so, because one is within the United States and one is not. That’s a distinction with a vast difference. Whether the Supreme Court can figure out a rational doctrine that allows for one without the other remains to be seen, but the law can’t always solve the problems we humans can cause. Not even when the situation is as awful as the killing of Sergio Hernandez Guereca.

6 Comments on this post.

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  • SCG
    23 February 2017 at 11:59 am - Reply

    Case law aside, it is a terrible thing that a LEO can shoot an unarmed person with absolute impunity.

    The likelihood that Congress will address this is rather unlikely, given that the nationality of the victim. I suspect that had this occurred on the other border the response would be very different.

    • JohnM
      23 February 2017 at 2:53 pm - Reply

      Agree – that’s the gap – that a LEO under the color of law isn’t accountable for who he shoots under all circumstances.

      argumentum ad absurdum: If a US citizen shoots a non-US citizen across a border, are their still no consequences? Is the State again extending the blanket of accountability only to itself?

      • SCG
        23 February 2017 at 3:04 pm - Reply

        I suspect so.(accountability doesn’t apply to State agents) Extradition treaties only apply to people, not agents of the Government. At least I can’t think of any instances of the US allowing the extradition of government employees.

  • Patrick Maupin
    23 February 2017 at 4:49 pm - Reply

    even though it offers no doctrinal basis to distinguish how relief could be provided Hernandez but denied innocent victims of drone strikes

    One of the major selling points of drone strikes is that they are “surgical”, supposedly with all the limited collateral damage that should entail.

    But we still can’t be held responsible for this minimal collateral damage — apparently it’s inconceivable that the reason it is difficult to develop a doctrinal distinction is simply because there’s no good reason to deny relief to innocent victims of drone strikes.

    • shg
      23 February 2017 at 6:23 pm - Reply

      It’s one example. Facts patterns are infinite. Doctrines apply to all that fit within their paradigm. The results can be undesirable and unanticipated, in either direction.

      • Patrick Maupin
        23 February 2017 at 9:26 pm - Reply

        Of course. But sometimes, Chesterton’s Fence actually does need to be removed (or at least moved a little bit) so it would be nice to see a more compelling reason articulated for not altering it.