In an era of tense border disputes between the US and Mexico, two cross-border shooting trials and their contrasting rulings have further complicated diplomatic relations. Federal appeals courts in Texas and Arizona issued opposite decisions on whether US border patrol officers are liable for killing two Mexican citizens.
In June 2010, border patrol agent Jesus Mesa Jr. shot and killed 15-year-old Sergio Hernández Guereca as he was playing near the Texas-Mexico border. The US Court of Appeals for the Fifth Circuit decided that allowing the Guereca family to sue Mesa was beyond the jurisdiction of the court, as doing so could influence national security and foreign affairs.
In October 2012, 16-year-old José Antonio Elena Rodríguez was walking to a store near the Arizona-Mexico border when border patrol agent Lonnie Swartz shot him 10 times, killing him. The US Court of Appeals for the Ninth Circuit ruled this month that the Rodríguez family could sue Swartz for violating José’s constitutional rights, a decision contrasting that of the factually similar Guereca case.
The two decisions seem to illustrate that the Constitution applies differently in Texas than it does in Arizona, a confusing picture California Federal Judge Milan D. Smith Jr. is urging the US Supreme Court to clarify. The presence of a border fence brings the cases into extralegal limbo: Is a Mexican citizen standing on Mexican soil protected by the US Constitution if they are shot from across the border by US patrol agents?
Judge Smith is not the only one advocating for the Supreme Court to consider the cases. The Mexican government wants the Court to rule on how the victims can be compensated. “The United States would expect no less if the situation were reversed and a Mexican government agent had killed a U.S. national,” read a government-issued statement.
Two U.S. Agents Fired Into Mexico, Killing Teenagers. Only One Faces a Lawsuit
WASHINGTON — The Constitution should mean the same thing in Arizona as it does in Texas. But federal appeals courts have issued starkly different rulings about whether border guards in those states can be held to account for shootings across the Mexican border that took the lives of two teenagers.
In a dissent this month, a federal judge in California urged the Supreme Court to resolve the clashing rulings.
It cannot be, Judge Milan D. Smith Jr. wrote, that guards standing on American soil in Arizona may be sued for cross-border killings but that ones standing in Texas cannot.
“This is an untenable result,” Judge Smith wrote, “and will lead to an uneven administration of the rule of law.”
In the Arizona case, a border guard named Lonnie Swartz, standing on high ground, fired across the border onto a street in Nogales, killing a 16-year-old, José Antonio Elena Rodríguez.
A divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled this month that José Antonio’s mother could sue Mr. Swartz for violating her son’s constitutional rights.
What was described in her lawsuit, Judge Andrew J. Kleinfeld wrote for the majority, “is simple and straightforward murder.” He added — and this is what divided the two appeals courts — that José Antonio’s mother should not need congressional permission to sue.
The Texas case differed only in the details. There, a border guard named Jesus Mesa Jr. shot a fleeing 15-year-old boy in the head, killing him. The boy, Sergio Hernández Guereca, had been playing with friends in the dry bed of the Rio Grande and was in Mexico when he was struck.
The United States Court of Appeals for the Fifth Circuit, in New Orleans, said Sergio’s family could not sue Mr. Mesa.
“This is not a close case,” Judge Edith Jones wrote for the majority in March. Congress could pass a law allowing suits against federal officials by “aliens injured abroad,” she said. But without such a law, she wrote, federal courts should not “interfere with the political branches’ oversight of national security and foreign affairs.”
The Supreme Court will soon consider whether to hear the Texas case, Hernandez v. Mesa, which has been before the justices once before. In the Arizona case, Rodriguez v. Swartz, a lawyer for Mr. Swartz filed papers last week indicating that he would seek Supreme Court review.
If the Supreme Court agrees to hear one or both of the cases, the families of the boys may face an uphill fight. And there is little reason to think that Judge Brett M. Kavanaugh, President Trump’s Supreme Court nominee, would be sympathetic to their arguments.
In 2015, Judge Kavanaugh, who sits on the United States Court of Appeals for the District of Columbia Circuit, joined a decision dismissing a lawsuit filed by an American citizen who said he had suffered months of abuse at the hands of American law enforcement officials in Kenya, Somalia and Ethiopia. In a concurring opinion, Judge Kavanaugh said the plaintiff, Amir Meshal, could not sue the officials for violating his constitutional rights because no statute authorized such suits.
In 1971, in Bivens v. Six Unknown Named Agents, the Supreme Court ruled that such congressional authorization was not always needed for people to sue federal officials for violating their constitutional rights. But the court has grown increasingly uneasy about the decision, which concerned the unconstitutional search of a home in Brooklyn, and it has cautioned that the decision should not lightly be extended to new contexts. The Supreme Court itself has extended the Bivens decision only twice, most recently 38 years ago.
Judge Kavanaugh wrote that the Bivens decision did not apply in Mr. Meshal’s case because it involved “a national security investigation in a foreign country.”
“If I were a member of Congress, I might vote to enact a new tort cause of action to cover a case like Meshal’s,” he wrote. “But as judges, we do not get to make that decision.”
In the Arizona case, Judge Kleinfeld said that an unprovoked, willful and needless killing warranted extending the Bivens decision to allow a suit from the boy’s mother. In the Texas case, Judge Jones wrote that only Congress could make that determination, particularly given the national security and diplomatic concerns at play.
Both cases are at early stages, and for now judges must accept the version of events offered by the boys’ families. They must assume, that is, that the guards shot unarmed boys who posed no threat to them.
Mr. Swartz, the guard in the Arizona case, also faces criminal charges. In April, a jury in federal court in Tucson found him not guilty of murder but deadlocked on a manslaughter charge. Federal prosecutors have said that they will retry him for manslaughter.
In the civil suit against Mr. Swartz, his lawyer, Sean C. Chapman, told the Ninth Circuit that José Antonio’s “death was tragic.”
“The morality of Agent’s Swartz’s conduct, however, is not a relevant factor for this court’s consideration,” Mr. Chapman wrote.
Lee Gelernt, a lawyer with the American Civil Liberties Union, which represents José Antonio’s mother, said the Ninth Circuit’s decision “could not have come at a more important time, when this administration is seeking to further militarize the border.”
The government of Mexico, for its part, urged the Supreme Court to hear the Texas case.
“It is a priority to Mexico to see that the United States has provided adequate means to hold the agents accountable and to compensate the victims,” Mexico’s brief said. “The United States would expect no less if the situation were reversed and a Mexican government agent had killed a U.S. national.”
Source: The New York Times, Adam Liptak, August 20, 2018. Photo credit to Politico.