The Supreme Court will soon hear arguments in two combined cases involving U.S. Border Patrol agents alleged to have shot and killed foreign nationals, including a 15-year-old boy, on the Mexican side of the U.S. southern border.
The way in which the court ultimately rules could establish whether foreign nationals who aren’t even inside the United States have a right to file a lawsuit against federal officials.
At the heart of the questions presented are the facts in the case of Hernandez v. Mesa, which involved
A 2012 investigation by the Obama Justice Department determined that Mesa fired his weapon in connection to an incident involving smugglers who were throwing rocks at border agents to distract attention from illicit entries and to disrupt the apprehension of a suspected border crosser.
Furthermore, the Obama DOJ determined that there was “insufficient evidence” to support either federal criminal charges or federal civil rights charges against Mesa.
But Hernandez’s family has filed a civil suit against Mesa based on a 1971 Supreme Court precedent which allows some civil claims against federal officers who violate constitutional rights. The family asserts that the boy was simply playing an innocent game with friends that involved running to touch the border fence and then running back.
Prior Fifth Circuit ruling
The Hernandez case actually reached the Supreme Court in 2017 but was sent back down to the Fifth Circuit Court of Appeals when the justices were ultimately locked in a 4-4 tie.
The Fifth Circuit ruled en banc against Hernandez in 2018, notably finding that a foreign national on foreign soil doesn’t enjoy the same civil rights as a U.S. citizen on U.S. soil. Furthermore, given that the incident occurred at the border, it was considered a matter with foreign policy and national security implications, and therefore under the jurisdiction of the executive and legislative branches, not the judiciary. On top of that, the court also noted that Mesa had been fully investigated and cleared of criminal wrongdoing.
The Fifth Circuit also cited several pieces of legislation that supported the ruling against the Hernandez claim, namely the Civil Rights Acts, which specifically pertains to “citizen[s] of the United States or other person[s] within the jurisdiction thereof,” the Federal Tort Claims Act, which excludes claims originating on foreign soil, and the Torture Victim Protection Act, which grants exemption from liability for certain federal officers.
“The case, in my opinion, is clear,” Mesa’s attorney, Randy Ortega, told Fox News. “The Constitution only provides redress for acts occurring within the United States, thus the Fifth Circuit ruling is on point. To allow those injured in foreign jurisdictions to bring suit in the United States would result in a flood of litigation and a chilling effect on those protecting our borders.”
The Hernandez v. Mesa case has been combined with the similar case of Swartz v. Rodriguez, which unsurprisingly was the subject of an opposite lower court ruling by the liberal-dominated Ninth Circuit Court of Appeals, and both of those cases will be heard by the Supreme Court in its fall session.
If the high court upholds the Fifth Circuit ruling, the case will be finished and precedent will be set that federal officials are protected from suits by foreign nationals. If the Fifth Circuit ruling is overturned, however, the civil suit against Mesa will be allowed to proceed, and it will be clear that federal officials do not enjoy immunity from such claims.