Kalish: Border Line Rights

Jul 18, 2017

Among June’s Supreme Court releases was a short per curium ruling in Hernández v. Mesa. It didn’t get much coverage – the Justices basically sent everything back to the lower court. But, the case itself raised some of the most controversial questions of the term … and the Court’s attempt to avoid answering them spoke volumes.

In 2010, 15-year old Sergio Hernández and his friends were playing in a culvert that separates the United States from Mexico, daring one another to run and touch the fence on the U.S. side of the culvert. When Border Patrol Agent, Jesus Mesa approached, the boys ran and Mesa shot and killed Hernández, as he stood behind a pillar in the middle of the culvert.

The Department of Justice didn’t file charges, so Hernández’s family sued Mesa directly, arguing that he had violated their son’s 4th and 5th Amendment rights under the United States constitution. The problem, though, is that Hernández was a Mexican citizen, standing on the Mexican side of the border when he was shot.

The Supreme Court needed to decide whether Hernández had constitutional rights.

Oral arguments revealed the question’s difficulty. Hernández’s attorney argued that because all of the relevant actions took place in the United States – Mesa firing the gun – constitutional rights applied. But that logic would include victims of U.S.-launched drone strikes. Perhaps Hernández had rights because he lived in a border community … but then anyone living near a U.S. border would have constitutional rights.

But others suggested, it also can’t be right that an invisible line in an unmarked culvert determines the beginning and end of constitutional rights: that Hernández has no rights, but would have if the bullet had struck a few feet sooner. If U.S./Mexican relations are strained now, imagine if the Supreme Court said there’s no constitutional problem with border patrol agents shooting Mexican citizens, as long as they’re standing in Mexico.

The Court avoided the problem. In another case this term, Ziglar v. Abbasi, the Court strictly limited people’s ability to bring these kinds of damages suits for violations of constitutional rights. So, they sent the Hernández case back down for the lower court to decide whether, in light of these new restrictions, there would be a claim.

In other words: if the Hernández family can’t bring this kind of suit at all, then the Court doesn’t need to decide whether or not their son had constitutional rights.