SCOTUS Hears Arguments in Border Patrol Shooting Case

At issue are self-defense, enforcement 'overreach', and international borders

By Dan Cadman on November 19, 2019

At about the same time that the Supreme Court of the United States (SCOTUS) entertained oral arguments in the DACA case, it was also hearing oral arguments — for the second time — in the case of Hernandez v. Mesa.

That case involved the shooting death of 15-year-old Sergio Hernandez, a Mexican citizen standing on the Mexico side of the border, by Jesus Mesa Jr., a U.S. Border Patrol agent. The parents sued Mesa for a federal tort claim, citing a prior SCOTUS precedent (Bivens), which permits, under limited circumstances, personal liability for wrongs committed by federal officers. This case was initially dismissed by the Fifth Circuit Court of Appeals, which held that Bivens did not apply, but the Supreme Court granted a petition for certiorari, and sent the matter back for reconsideration on one of the issues raised on review. The Fifth Circuit again dismissed, SCOTUS again granted review, and that was the state of affairs before the Court this time around.

Those are the bare bones of the case, but one of the things that can be most troubling about higher court reviews is that they are based on the record as developed by lower courts, and it is an understatement to say that the record can be incomplete in many respects. If one reviews the transcripts — and, indeed, many of the extemporaneous blogs posted by lawyers and pundits, as well as news articles surrounding the case — one will see constant reference to the fact that young Sergio was killed while innocently playing on his side of the border, the inference being that Mesa was a wild-eyed cowboy who vastly overreached his law enforcement authorities when he fired his weapon.

But the factual record going back to the actual event is not so clear, and Mesa has asserted that a group of youths — quite possibly including Sergio — were "rocking" agents on the U.S. side; that is to say, throwing rocks at those agents. It's important to understand in this context that we are not talking about pebbles. When such assaults happen, and they do with disturbing frequency in the immediate vicinity of the physical frontier, the rocks are of a size and heft that they could cost an agent his or her eye, or shattered bones, or a concussion, or if unlucky enough to be struck in the temple, his or her life.

It's also important to understand that quite frequently the individuals propelling those rocks, either by hand or by sling to give them even more deadly velocity, are youths. They invariably stand on their side of the border, understanding full well that doing so forces agents to have to calculate carefully — at risk to themselves as the rocks fly — whether and how to respond, realizing that it might give rise to an international incident.

Finally, it's important to understand that oftentimes the youths throwing the rocks have been paid by drug or human smugglers to distract agents with such tactics while the contrabandistas are moving their load elsewhere unimpeded, as agents move to give support to the fellow agent(s) under attack.

Thus it's not unreasonable to believe that Mesa speaks with credibility when he makes this allegation. Certainly his story was persuasive to the authorities in the state and federal government who investigate and prosecute such claims. At each level, there were no indictments or disciplinary actions taken against Mesa. Yet we see no delving into this in the transcript of the oral arguments, which gives an almost surreal feel to the proceedings. But such is the law, which thrives on these fictions and delimited versions of reality.

Make no doubt that I have sympathies for Sergio's bereaved parents, although at the same time I can't help but believe that in their hearts they must suspect he was not innocently playing at the time he was killed. I also have sympathy for Mesa who has been through hell and back since it happened, simply for having had the temerity to act in self defense in a job that is at the best of times trying and stressful beyond the imaginings of most Americans.

I also find myself pondering how lucky Mesa was (however odd that may sound) that the act took place within the boundaries of the Fifth Circuit, rather than, for example, the ultra-liberal Ninth Circuit Court of Appeals. I suspect that had the Ninth heard the case, Mesa would have been arguing from an even more tenuous and surreal position than he has been to date, and that he would have been the one petitioning SCOTUS to overturn a circuit court decision against him.

But this leaves us to ponder what to do to avert, or at least mitigate, future such tragedies and safeguard agents and individuals on both sides of the southern border. Two things come to mind, each of which would likely find hard purchase on one side of that boundary or the other.

First, Customs and Border Protection, the Border Patrol's "mother" agency, should invest in body cameras for its agents. This would help significantly to dispel factual disputes over exactly what was going on, such as playing vs. rocking U.S. agents. I suspect that the suggestion might not find ready traction with all segments of officialdom, or perhaps even the Border Patrol union, but if the purpose of the Bivens lawsuits is to deter law enforcement officers and agents from wrongdoing, which is one of the premises enunciated by SCOTUS when it decided the Bivens case, then it sure is a lot cheaper to deter them with body cameras, before they face long years of lawsuits and ruinous lawyer fees.

Second, Mexican officials should give thought to creating an official "demilitarized" zone on their side of the border and instructing individuals not to cross into that zone lest they be arrested. This would hold back at least some would-be rockers and accomplices to smuggling organizations. And it would make clear (especially if body cameras are in use) that persons who are in that zone are assuming a level of risk if they act against U.S. personnel, who should never be obliged to surrender the safety and well-being of themselves, fellow officers, or detainees they've taken into custody just because individuals choose to attack and harass them from the Mexican side. Their encroachment across a forbidden drag-strip zone would be proof positive of malicious intent.

I realize these proposals are not a cure-all; there will be places on the border that aren't amenable to Mexican drag strips and no-go zones, and body cameras can't capture everything. Even so, both would be a long stretch better than the status quo.