Border securitySupreme Court considering case of Mexican boy killed by Border Patrol agent shooting across border

The Supreme Court appears to be evenly divided about the question of whether the Mexican parents of a teenager who was shot dead by a Border Patrol officer could use American courts to sue the Border Patrol agent who fired across the U.S.-Mexican border and killed their son.

The teenager was on Mexican territory when he was killed.

Justice Anthony Kennedy and other conservative justices, during arguments Tuesday, appeared to suggest that the fact that the boy died on Mexican soil was sufficient to keep the matter out of U.S. courts.

The four liberal justices appeared to indicate they would support the parents’ lawsuit because the shooting happened close to the border in an area in which the two countries share responsibility for security.

The case revolves around an incident that took place in June 2010 in the cement culvert which separates El Paso, Texas, from Ciudad Juárez, Mexico.

The San Antonio Express News reports that the circumstances of what exactly happened are in dispute, but there is no dispute over the fact that the agent was on the U.S. side of the border when he fired his gun, striking Sergio Adrian Hernandez Guereca on the Mexican side of the border.

Lower courts dismissed the parents’ lawsuit – but the Supreme Court has taken up the case in order to determine whether non-citizens who are injured or killed outside the United States — by actions of an American from inside the United States — can pursue their case in American courts.

Legal analysts note that some aspects of the case resemble aspects of the battle over Donald Trump’s travel ban, because in both cases the issues involve the rights of foreigners.

Kennedy noted the Supreme Court had been reluctant to allow civil rights lawsuits by foreigners, especially when there may be international relations implications. “This is a sensitive area of foreign affairs where the political branches ought to discuss with Mexico what the solutions ought to be,” Kennedy said.

U.S. officials opted not to prosecute Border Patrol agent Jesus Mesa Jr., who shot the Mexican teenager, and the Obama administration refused a request from Mexico to extradite him so he could be prosecuted in Mexico.

Deputy solicitor general Edwin Kneedler, representing the Trump administration, argued that the location of the teenager’s death, in Mexico, should be the end of the story. He told the court that even if the victim had been American and all the other circumstances had been the same, the lawsuit should be thrown out.

Kneedler and Mesa’s lawyer, however, both acknowledged that someone killed by an agent on the U.S. side of the culvert could sue.

“That doesn’t make a whole lot of sense, does it? To distinguish these two victims?” Justice Ruth Bader Ginsburg said.

The Express News notes that Sergio’s shooting was not an isolated incident. Parents of a Mexican teenager killed by a Border Patrol agent in Nogales, Mexico – the agent was on U.S. soil, and he fired his shots across the border — have filed a civil rights lawsuit. Their legal action is being delayed until the Supreme Court rules in the Hernandez case.

The U.S. government’s response in the latter case – the one in Nogales — was different from the Hernandez case, with prosecutors now pursuing second-degree murder charges against Border Patrol agent Lonnie Swartz for shooting and killing Jose Antonio Elena Rodriguez, 16.

The Hernandez and Elena cases are not unusual. A 2013 report commissioned by CBP harshly criticized the agency for not aggressively investigating the sixty-seven shooting incidents which took place from 2010 to 2012. The report also questioned the use of force in some of those incidents.