A mother whose son was killed by a Border Patrol agent firing across the boundary into Mexico cannot sue the agent, the Supreme Court decided Tuesday, ruling that to do so would give private citizens the power to shape foreign policy.
The 5-4 ruling ends years of legal battle over the 2010 death of Sergio Adrian Hernandez Guereca, who was 15 when he was shot while with a group of Mexican teens who were running onto and then off U.S. territory near El Paso, Texas.
American authorities concluded the agent didn’t violate Border Patrol policy and refused Mexico’s request to extradite him to face prosecution there. So his parents said their only option to get accountability was to sue the agent, under what is known as a Bivens claim, arguing he violated the teen’s civil rights.
Justice Samuel A. Alito Jr., writing for the five Republican-appointed justice majority, said Bivens does not apply to foreigners suing over cross-border activity. He said Congress could create that cause of action, but it’s not for the courts to do so.
“Congress, which has authority in the field of foreign affairs, has chosen not to create liability in similar statutes, leaving the resolution of extraterritorial claims brought by foreign nationals to executive officials and the diplomatic process,” he wrote.
The ruling is the second time the case reached the Supreme Court. In 2017 the justices sent it back to a lower appeals court for more deliberation.
Complicating matters are the facts, which are deeply in dispute.
The boy’s parents say the teens were playing a game of running up to touch the border fence, then retreating into Mexico. The agent says the juveniles had attempted to sneak into the U.S., then pelted him with rocks as they retreated, and he was defending himself.
Justice Ruth Bader Ginsburg, writing in dissent, said the agent admitted he didn’t know whether the boy was in the U.S. or Mexico at the time of the shooting and said he violated his “instructions” in firing.
She said the answer to the grieving parents can’t be no recourse, particularly at a time when complaints of agent shootings and abuse are usually met with no formal discipline within the Border Patrol.
“I resist the conclusion that ’nothing’ is the answer required in this case,” she wrote.
Justice Clarence Thomas, who sided with Justice Alito, wrote his own opinion to object to the entire line of Bivens doctrine that allows private citizens to sue law enforcement officers over deprivation of rights.
He said the 1971 Supreme Court ruling that created the Bivens doctrine was a departure from the Constitution and it’s time to put the genie back in the bottle.
“The analysis underlying Bivens cannot be defended,” he said.
The American Civil Liberties Union, which says it is arguing a similar case out of Arizona, said the court’s ruling Tuesday will have major repercussions amid President Trump’s “militarized rhetoric” about the border.
“Border agents should not have immunity to fatally shoot Mexican teenagers on the other side of the border fence. The Constitution does not stop at the border,” said Lee Gelernt, an ACLU lawyer.
Rep. Joaquin Castro, chairman of the Congressional Hispanic Caucus, said the ruling gives a green light to murder and agreed with Justice Ginsburg that heavy-handed Border Patrol behavior is a growing problem.
“It’s become abundantly clear that Trump’s Department of Homeland Security and Customs and Border Protection are out of control and must be reined in,” he said. “Congress must hold this department accountable and ensure that agents who abuse their power face justice.”
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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