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CHASTENED & CHASTISED

Supreme Court offers no relief to parents in cross-border shooting case

SCOTUS and flag redux.
Ephrat Livni
Cross-border shooting claims have “distinctive characteristics.”
  • Ephrat Livni
By Ephrat Livni

Senior reporter, law & politics, DC.

Washington DC

Today, the US Supreme Court decided a case about a US Border Patrol agent, a slain Mexican teenager, and his parents’ right to sue. It’s the second time the justices have reviewed the matter. Last time, it went better for the parents.

In 2010, Jesus Mesa of the US shot 15-year-old Sergio Hernandez, a Mexican. Each was on his home soil when the incident occurred. The officer says the boy had illegally crossed the border. His parents argue that he was innocently playing in an adjacent culvert in Mexico. They have for many years been trying to sue Mesa, who is apparently, conclusively, immune to their constitutional claims for damages.

Five conservative justices joined in the majority’s decision, written by Samuel Alito, while the court’s four progressives allowed Ruth Bader Ginsburg to voice their dissent. All seem to agree the facts here are “tragic,” but there’s a definite split on just what the facts are and how the law applies in these circumstances.

The justices had to decide whether their precedent on federal agents being subject to civil lawsuits, on constitutional grounds, was properly applied by a lower court, having remanded the matter previously for reconsideration. This time, the majority held that a cross-border shooting is a new and inappropriate context for such claims, which should be treated with caution because they implicate national security and diplomacy and Congress may have sound reasons for not writing a statute that would allow these suits.

It was essentially the argument the Department of Justice has been making, for Mesa and on behalf of the nation. The government said that allowing a constitutional claim against an officer who had been cleared of wrongdoing officially, as Mesa had been, would complicate relations with Mexico and have a chilling effect on Border Patrol and other security agents.

The minority doesn’t think chilling shootings is such a bad idea, it seems. Ginsburg countered that there was nothing “new” about this “setting” for a claim against a “rogue” government officer. She said the facts of the case had to be taken as the parents presented them and indicated they needed recourse for their loss.

Allowing the case to proceed would not threaten US foreign policy or jeopardize national security, the dissent argued. “I resist the conclusion that ‘nothing’ is the answer required in this case,” Ginsburg wrote. The minority would have found that plaintiffs can sue Mesa in federal court for violating constitutional rights.

Alito delivered his statement on the case for the majority somberly at a hearing this morning, no doubt acutely aware of his colleagues’ disapproval. He sounded almost sorrowful when noting that in recent years the court has come to recognize the importance of separation of powers as it had not in the past.

But now, the chastened majority knows better. A court can’t create a constitutional claim in these circumstances to make up for any alleged statutory deficiency. The judiciary can’t just go around asserting authority belonging to another government branch, Alito explained.

The theme was familiar. Just moments before, Neil Gorsuch delivered his more amusing ruling for a unanimous bench on a “curious” tax refund case, which also disapproved of judicial activism.

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