Supreme Court Hears Case on Fatal Border Shooting

The Supreme Court will only consider whether the Hernández family has a right to sue.

Inside the Supreme Court chamber, Hilliard had some difficulty selling his counterargument to the court's four conservative justices. Since coming into office, President Donald Trump has nominated Neil Gorsuch to be the ninth justice.

Two U.S. investigations found there were no grounds on which to charge or reprimand Mesa.

Chief Justice John Roberts led the tough questioning of Hernadez's lawyer, who seemed out of his depth in the High Court. The government said the parents' claims under the Fourth Amendment should be dismissed because its protections against unreasonable search and seizure don't apply to noncitizens outside the U.S.

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 USA border fence before dashing back. In the footage, Mesa, patrolling in the culvert on a bike, grabbed one of the boys.

While holding down another child, Mesa fired three shots - one of which hit Sergio in the head, killing him.

He and other conservative justices suggested the boy's death on the Mexican side of the border was enough to keep the matter out of USA courts.

Mesa also should be shielded from liability for the shooting, Mesa and the government argued in court papers.

"They don't want his name slaughtered throughout the media", said the family's lawyer. A cell phone video capturing the incident disproved this narrative, however.

When the US refused an extradition request, the parents sued.


From October 2010 to August 2016, Customs and Border Patrol officers reported 243 incidents of lethal force involving firearms, most along the 2,000-mile U.S. -Mexico border, according to government records cited in the Mexican government's brief.

Also Tuesday the court heard arguments in McLane Co. v. EEOC [transcript, PDF] in which it must decide whether a district court's ruling in an Equal Employment Opportunity Commission (EEOC) [official website] subpoena matter should be reviewed de novo or deferentially.

"I am trying to see what the logic is", Roberts said, leaving little doubt that he didn't see any at all.

The primary legal issue surrounding Hernandez's death is the location in which it took place.

The right to sue "should not be extended to aliens injured overseas", the government said in its court filing. The family is seeking to sue the agent in federal court, arguing that US constitutional protections apply to Hernandez even though he wasn't in the USA when he was shot.

In a sign of how bystander videos have become increasingly significant in the prosecution of cases against police officers, Justice Sonia Sotomayor noted that she had watched a video of the shooting on YouTube. The full 5th Circuit later sided with Mesa.

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

Earlier this week, the mayor of Douglas, Arizona - a town that sits on the Mexican border - called the wall a waste of money.

Maria Guadalupe Guereca, 60, leaves her house on her vehicle to visit the grave of her murdered son Sergio Hernandez at the Jardines del Recuerdo cemetery in Ciudad Juarez, Chihuahua, Mexico. Swartz is on leave and his trial is set for June. "We're asking for the court to hold that law-enforcement conduct that occurred entirely on United States soil - so it's domestic conduct, entirely - should be subject to judicial review under circumstances where, if the victim were a U.S. citizen, everyone would agree that there would be an egregious constitutional violation". The agency has said it has tightened its policies, particularly in response to rock-throwers.

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