Tuesday, February 25, 2020

SCOTUS Rules: Family of Teen Killed in Cross-Border Shooting Can’t Sue Border Patrol Agent

Chivis Martinez Borderland Beat


In 2010 15 year old Serio Adrian Hernandez Guereca was shot and killed by CBP agent Jesus Mesa.  Agent Mesa says he was responding to a call that there was an illegal border crossing occurring.  

Mesa shot Hernandez from the U.S. side of the border into Mexico, as Hernandez was playing a game that included running into the U.S. territory.

Hernandez’ parents want to sue for the death of their child, but   The Supreme Court ruled Tuesday that agent Mesa cannot be litigated against for the shooting.

The conservative majority SCOTUS overruled the liberal minority in a 5-4 decision.

The case “Hernandez v. Mesa”, was heard by the Court in 2017 before being sent back to a federal appeals court.


The dissenting vote was argued by Justice Ruth Bader Ginsburg  stressing that the concern with international law and national security should not apply because Mesa shot from the US side of the border.
“Neither U. S. foreign policy nor national security is in fact endangered by the litigation.  Moreover, concerns attending the application of our law to conduct occurring abroad are not involved, for plaintiffs seek the application of U. S. law to conduct occurring inside our borders.” Stated Ginsburg in her dissent.
 


The case was filed based on a 1971 case; Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, in which the Supreme Court ruled, a homeowner could sue federal agents under the Fourth Amendment for any search without a warrant. But the supreme court majority decided not to apply Bivens in the Hernandez case.
“The court reasoned that such an incident presents a ‘new context’ and that multiple factors, including the incident’s relationship to foreign affairs and national security, the extraterritorial aspect of the case, and Congress’s ‘repeated refusals’ to create a damages remedy for injuries incurred on foreign soil, counseled against an extension of Bivens,” said Justice Samuel Alito.
Justice Clarence Thomas, and Justice Neil Gorsuch, wrote a like-minded  opinion arguing  “the time has come to consider discarding the Bivens doctrine altogether.”

“Federal courts lack the authority to engage in the distinctly legislative task of creating causes of action for damages to enforce federal positive law,” Thomas said. “We are exercising legislative power vested in Congress.”


Ironically, if the teen had been killed on US soil the parents would be able to sue.

47 comments:

  1. I would like to hear pros and cons...but keep the comments respectful or they won"t make the cut..thanks

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    1. It's an unfortunate situation for the family chivis.
      A tragic event along with what many may perceive as an injustice of improper conduct by border patrol.
      I am not familiar with the rules of engagement when it comes to border security. However, reading this article thoroughly. No evidence of harm towards border patrol agents was ever concluded. Thus; raising the question of a human rights violations.
      If America's application of "shoot to kill" towards illegal crossings exists. Then we are no better nor different than many of the other criticized countries we condemn.
      Note; maybe these border agents need to acquire insurance coverages like those of doctors or nurses. Something I have always stressed strongly.
      Look how much cities payout for lawsuits against police officers nationwide. Its becoming a tax burden upon taxpayers in my opinion.

      Tough story chivis.
      E42

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    2. To me it is about the parameters of the law. and perhaps it is time to address changes that would allow litigation in some cases.

      Law makers have to rule within the four corners of a law.
      As you said there did not appear to be an aggression prior to shooting, simply an illegal crossing which is a frequent occurrence.

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    3. Waiting for lawmakers to address anything nowadays is becoming a nuisance for many Americans today and in this age. A broken system for many for those suffering and wanting change.

      Nevertheless, a point made.
      Best wishes to all on borderlandbeat.

      E42

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    4. Is this the one where the kid threw rocks at Border Agents.?

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    5. No pressing need...a rare occurrence I was simply stating that is the only way to reach a different just ruling

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    6. " A broken system for many suffering wanting change ".. what a load of crap! Name this " suffering you speak of " E42 ". And I garuantee you a shoot to kill would end illegal crosdings over night. Long overdue...

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    7. Obviously this is not included in the statue, but does anyone think the Mexican govt would allow a foreigner to sue them if situation was reversed? Of course not! They are such hypocrites.They claim the U.S. is so bad to immigrants but they are much, much worse to foreigners in their country.

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    8. No he attacked the BP agent.. he got what he deserved.

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    9. had been playing a game in a cement culvert over which an invisible line separates the two countries. The kids dared each other to run through the dry drain pipe, crossing the unmarked border, in order to touch the fence on the U.S. side then run back to the Mexican side.

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    10. he did not throw rocks, there was a video. in other cases rocks were thrown and once caused serious injury to agent.

      ironically if he had been killed on US soil the parents could have sued

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    11. @ BB
      Perfect example of the racial divide in this country by 6:50.
      The only long overdue is your existence.

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    12. "
      AnonymousFebruary 25, 2020 at 6:50 PM
      " A broken system for many suffering wanting change ".. what a load of crap! Name this " suffering you speak of " E42 ". And I garuantee you a shoot to kill would end illegal crosdings over night. Long overdue..."


      JAI MAI FREN, I think that you are incorrect. If there would be a "shoot to kill on sight" for illegal border crossins, lets me serious, anyone that knows what the $!#% is going on in the world knows that the US would be stuck with another war, this one much closer to home and one that they arent prepared for. Remember, as history has shown us, the USA is only good at being a bully to countries that are no where near them. If the US ever did something stupid as what you have suggested you would see a bunch of cauciasian/white washed (anything) crying and running for their lives, worse then when they don't get their latest addition of pottery barn. You can go ahead and take that to the bank.

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  2. Not a very smart game to play in light of the current political environment.

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    1. A current political environment created by those who have malicious interests.

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    2. This happen in 2010! What does the current political environment have to do with it?

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    3. Was Trump President in 2010?

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    4. 12:28? You mean politicians?

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    5. 5:11 the current political environment has corrupted the US Senate and SCOTUS, this is just one more example 10 years after 2010.

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    6. Yeah, that ultra conservative Ruth Bader ginsburg

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  3. Blessing in disguise to the victims family. Imagine if the family wins millions of dollars. The cartels will have a say about that.

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    1. These cartels will abuse individuals for their gainful purposes. Subjecting many innocent people to their deaths for profits.

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    2. 11:51 you have a "unique" way of "thinking"...surely if this happened to your family you'd say the same thing.

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    3. If i live in Mexico, I would be low key and not having millions of dollars (not pesos) in my account. I would not be flashy with nice cars and bling bling. That is a death sentence. RIP to the kid and hope the family find peace.

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    4. Time to be realistic about this situation. The family wanted to “sue” the border patrol agent...not the agency. How much do you think the agent makes? Even if the family could file suit against the agent, they were never going to get millions. And if they did win a lawsuit against the agent, who’s going to force him to pay up??? Keep in mind, OJ was responsible for the murders of two people in a civil court and has never paid a dime to either of the families. Whether the SCOTUS allowed the lawsuit or not, the family was never going to profit.

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    5. Try suit the Mexican Government

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  4. The holding of the Court is simply that Congress, not SCOTUS, has the power to create a civil cause of action since it is legislation. Separation of powers. Now, should congress create a cause of action—-that’s the policy discussion. The Court should t be creating law. It’s job under Article III is to interpret the law and apply it.

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  5. Of course 10yrs later

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  6. Mixed in a group of people throwing rocks, illegally entry into a country, sad for the loss of life, but not surprised by the death or the SCOTUS decision.

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  7. If it was an American Kid shot by a Mexican we know the result would be so different.
    American Double Standards, Mexico needs to say we ain't extraditing anybody anymore since you treat your citizens like they matter and nobody else does
    Look at that American Government Workers Wife in England, she runs over and kills somebody and then flees and hides in America and America refuse to send her.
    What a Joke America the World's Oil Police and the World's Biggest Drug Dealers.
    American people are great but your Politicians are War Criminals
    Deporting Mexicans from their own Lands, Mexicans were there first

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    1. Interesting point with factual evidence to support this statement.
      Let's not forget the tragic deaths of the mormon people traveling in Mexico.

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    2. "Deporting Mexicans from their own Lands, Mexicans were there first"
      You're not getting US "back". Maybe California but I doubt it
      because their virue is untrue, a farce. You want "land" back simply because that's easier than having MEXICO back. Americans are suckers and your attitude comes from delusion.

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  8. It's all about $$$$$$$. Nobody cares about mi hijo. The lawyers are to get their 40% plus expenses. Thank you justice Thomas.

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  9. You know who control the border and its not the Border Patrol or ICE, it's the Cartel

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  10. 15 yr old is old enough not to play games If that in fact what happened
    I dont believe its a legit case against the US border or our Federal Gov.
    Its Illegal its agaisnt the law
    To cross to US soil
    This is a example of people trying to take advantage of The US
    If my child was caught and killed because he was breaking a law and killed because of it ? I am sure I would find my deep place of My moral compass and understand So my child goes to mexico gets killed by Mexican police because they say he broke the law There is not a thing I could do about it Let alone sue Mexican police Gov
    The people who die because of the drugs illegal Mexicans bring into the USA ??? Sue Your Mexican Gov.?

    No This case shouldve never even gone to court .. I dont see people sueing Cartels for killing innocents
    I dont see Mexicans sueing the President of Mexico for the crime / poor living or lack of safty for its citizens in Mexico
    No to me this is a Clear Lets get Rich off of America
    We do sue Illegals killing Americans by rape DUIs etc

    Throw this case out the window
    Throw this lawyer out the window
    For even doing this
    If you play games with Law Enforcement and think you can do what ever you want your wrong
    Look at the BP agent who died
    His family didnt sue mMxico for his death
    Its a two way street Mexico
    I am sorry you have a horriable run country But dont hate us for it
    Look at your aelf and how Governs you
    This is a unfortunate case
    It happens But to make money off your dead child no way Peep WRONG
    Teach your other children disipline


    You all are gonna think I am hard heart
    I am not No more taking adventage of The USA
    Cant have it both ways here




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    1. Your comments are getting tiresome, I know the advice I gave you will be of no use as you are already poisoned.

      El Chelas

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  11. The system wasn't made for us people of color and that is a fact so this case is just another case of shooting a Mexican by CBP we are in 2020 stop acting like the governments really going to play our way because its not . government officials don't give a fuck point blank why is that so hard to see and believe. Many of us want change but change will never happen . the government cartels run everything in their favor not OURS including law makers its for their interests not ours . the sooner everyone realizes that the better of an understanding we will get

    El Grande

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    1. Can't disagree with how things have worked for decades. All bought & paid for by interests groups.

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    2. El grande...it’s unfortunate that you do not realize the SCOTUS’s decision had absolutely nothing to do with skin color. Not sure if you live in the US or on the other side of the border but either way...a little more education on the matter would definitely be a benefit to you. If you are on the other side of that border and not a citizen, your opinion really doesn’t matter and you have way more to worry about living in that southern cesspool. Good food down there though...so they got that goin for them.

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  12. wonder what would happen if the vice versa happens now that this ruling took place.

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    1. American government usually gets their way.

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  13. Clearly when considering the humanity of it all it is a very unfortunate matter. The justice system in the USA is that it should not legislate, legislation being a matter for Congress (there are different branches of government, as we all know, a division of power where one branch makes the laws and the other only interprets laws within the scope of the Constitution; and there is the third branch, the executive), and that is why the Supreme Court there ruled in the majority that this remedy allowing international civil suit in these matters at the border was not constitutional, in effect, that the only branch of government that could make change so that the remedy could become constitutional would be the legislative/Congress. The Court makes determinations of constitutionality of laws Present; until Congress changes the law on international civil suits, the Court must rule accordingly as is the judgement in this case. The Court did not rule on right or wrong in the case, but made a ruling on the law Present. The minority decided differently along ideological lines dividing conservative and liberal; the liberal side often (seemingly) attempts to cross into legislating, and the conservatives will not allow such, rather, they the conservatives are conserving the Constitution/law of that country as it reads. Any USA court is not a court of justice-although the term "justice" is often used rhetorically--but a court of laws , and often in that country obtaining justice and applying a legislature's law does not necessarily go together. If you had a court making subjective determinations leading to rulings on moral right or wrong, you would have legal pandemonium, and that is one reason that the courts rule objectively versus subjectively.

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  14. People as individuals or represenitvies of agencies need to be held accountable for use of power. classic if it would of been a Mexican agent who shot an American the US would of requested prosecution on American soil of the Mexican agent. Do we need to March to say "Mexican lives matter" also?

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  15. 2:50
    HOW AM i poisoned.. ? By what ?

    Please tell me. BB asked us how we feel
    So you attack one for their opinion
    I am a Independent thinker
    No one has told me how to think, or feel.

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  16. Most kids play in parks. These idiots were testing the limits of the BP for the cartels. Got what he had coming

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