U.S. Supreme Court

SCOTUS to consider implied right to sue in case of Mexican boy shot and killed by US border guard

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The U.S. Supreme Court agreed Tuesday to consider once again whether the family of a Mexican teen has an implied right to sue in U.S. courts for his fatal cross-border shooting by a U.S. Border Patrol agent.

The high court granted cert in the case of Sergio Adrian Hernandez Guereca, who was 15 when he was shot and killed in June 2010 by an agent on the Texas side of the border. The Supreme Court had returned the case to the 5th U.S. Circuit Court of Appeals at New Orleans for further review in 2017.

On remand, the 5th Circuit ruled that Hernandez’s family could not sue. The 9th Circuit at San Francisco reached the opposite result in a similar case involving a Border Patrol agent in Arizona.

In the Texas case, the U.S. Border Patrol had said Hernandez was throwing rocks to distract agents from an immigrant smuggling operation. The family’s lawyer said he was playing a game with friends in which they dared each other to run up a culvert incline, touch the border fence, then run back to the bottom of the culvert.

The Supreme Court agreed to consider the first issue in the cert petition, which asks whether federal courts should recognize a Bivens claim for damages for alleged violations of the teen’s Fourth and Fifth Amendment rights. A Bivens remedy is named for a case that found an implied right of action to sue federal officials who violate the constitutional ban on unreasonable searches and seizures.

The Supreme Court “has grown increasingly uneasy” with the Bivens decision, “and it has cautioned that the decision should not lightly be extended to new contexts,” the New York Times reported last summer in a story on the conflicting 5th and 9th Circuit rulings. “The Supreme Court itself has extended the Bivens decision only twice, most recently 38 years ago,” the New York Times reported.

The case before the Supreme Court is Hernandez v. Mesa. The SCOTUSblog case page is here. The Washington Post and USA Today have coverage of the cert grant.

See also:

ABAJournal.com: “Court to decide whether Constitution grants protections to Mexican boy killed by US border guard”

ABAJournal.com: “Supreme Court to consider suit over border agent’s shooting of teen on Mexican side of the border”

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