Supreme Court to decide what happens when a U.S. border agent shoots someone on the other side

Sunday, June 2, 2019
By Paul Martin

By Ronn Blitzer
Fox News

There is established Supreme Court precedent that a law enforcement official can be sued for damages if they violate a person’s constitutional rights, but what if the person suing is not an American and was in another country when they were harmed?

That is the question at the core of two federal cases involving border patrol agents in the United States who allegedly fired their weapons across the border, killing individuals in Mexico. One of those cases, Hernandez v. Mesa, will be heard by the Supreme Court during its next term.

Generally speaking, law enforcement officials are protected by qualified immunity for actions taken in the course of their official duty, but the 1971 case of Bivens v. Six Unknown Named Agents carved out an exception that allowed for civil claims against those federal officers who are accused of violating the Constitution under the color of their official authority.

The family of 15-year-old Sergio Adrian Hernandez Guereca claims that they can make what’s known as a Bivens claim against Agent Jesus Mesa Jr., who is accused of fatally shooting their son. The family claims that the teen and his friends were playing a game where they ran to touch the border fence, then ran back. Mesa allegedly fired across the border while standing on the U.S. side, with Hernandez still in Mexico.

“The deadly practice of agents, standing in the United States and shooting innocent kids across the border must be stopped,” Hernandez family attorney Bob Hilliard said in a statement. “It’s never right. It’s never constitutional. This is one of those times when morality and our U.S. constitution line up perfectly.”

In April 2012, the Obama Justice Department told a different story. Following an investigation, they said that the shooting happened when smugglers were “attempting an illegal border crossing hurled rocks from close range at a CBP [Customs and Border Protection] agent who was attempting to detain a suspect.”

he probe involved the FBI, Department of Homeland Security’s Inspector General’s Office, and prosecutors from the Justice Department’s Civil Rights Division and the U.S. Attorney’s Office for the Western District of Texas. Officials interviewed more than 25 witnesses and reviewed video and evidence from the scene. At the conclusion of the investigation, the DOJ said there was “insufficient evidence to pursue federal criminal charges,” and “that no federal civil rights charges could be pursued in this matter.”

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