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In this Jan. 24, 2020 photo, the Supreme Court is seen at sunset in Washington. (AP file photo)
In this Jan. 24, 2020 photo, the Supreme Court is seen at sunset in Washington. (AP file photo)

Cross-border shooting suit tossed by divided Supreme Court

A divided U.S. Supreme Court said the parents of a Mexican teenager can’t sue the American law enforcement agent who fatally shot the boy from across the border, in a ruling that curbs a decades-old tool for people to claim violations of their constitutional rights.

Voting 5-4 along ideological lines, the court barred Sergio Hernandez’s family from suing the U.S. border patrol agent who was standing in Texas when he shot the boy in 2010. Writing for the court, Justice Samuel Alito said only Congress could authorize the suit.

“Congress’s decision not to provide a judicial remedy does not compel us to step into its shoes,” Alito wrote. The ruling is a win for the Trump administration, which had urged the court to toss out the suit.

The majority said the family couldn’t press what is known as a Bivens claim, alleging violation of a constitutional right by a federal officer. That type of lawsuit took its name from a 1971 Supreme Court ruling that let a man sue federal drug-enforcement agents for arresting and searching him even though no federal law explicitly authorized the suit.

The Supreme Court has shown skepticism toward Bivens claims in recent years. A 2017 ruling said that “expanding the Bivens remedy is now a disfavored judicial activity,” and that it shouldn’t be applied in “new contexts.”

Dissenting Justice Ruth Bader Ginsburg wrote that Hernandez’s family would be left without any recourse.

‘Bivens or Nothing’

“It is all too apparent that to redress injuries like the one suffered here, it is Bivens or nothing,” she wrote. Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan joined her dissenting opinion.

Alito said allowing suits over cross-border incidents would risk putting the courts in the middle of foreign-relations and national-security issues that should be handled by Congress and the president.

“To avoid upsetting the delicate web of international relations, we typically presume that even congressionally crafted causes of action do not apply outside our borders,” Alito wrote. “These concerns are only heightened when judges are asked to fashion constitutional remedies.”

Justices Clarence Thomas and Neil Gorsuch said in a concurring opinion that the court should abandon the Bivens doctrine altogether.

Hernandez, 15, was shot while in a culvert whose center is the international border between El Paso, Texas, and Juarez, Mexico. His parents say Sergio and his friends were playing a game by running up the incline on the U.S. side, touching the fence there and running back into Mexican territory. The border agent, Jesus Mesa, was patrolling the U.S. side of the culvert on a bicycle when he encountered the boys.

The FBI at one point said the youths were throwing rocks, although Hernandez’s parents say video evidence refutes that account. U.S. officials declined to prosecute Mesa, and President Barack Obama’s administration rejected a request to extradite him to Mexico.

The ruling will affect a second pending case stemming from a 2012 shooting of a 16-year-old boy in Nogales, Mexico, by a U.S. border agent.

Ginsburg pointed to reports indicating that Border Patrol agents are rarely disciplined when they face abuse accusations.

“Regrettably, the death of Hernandez is not an isolated incident,” Ginsburg wrote.

The case is Hernandez v. Mesa, 17-1678.

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