At issue is whether congressional approval is needed before families can sue on behalf of foreign victims who were injured on foreign soil. The court took the case from Texas, but its outcome will influence the Arizona case.
The Supreme Court previously considered the death of 15-year-old Sergio Adrián Hernández Güereca, who was shot and killed in 2010 on the Mexican side of the wide culvert that separates El Paso from Juárez.
Border agent Jesus Mesa Jr. was patrolling the area when Sergio and his friends ran up the steep embankment on the U.S. side to touch the tall fence and then raced back to Mexico.
Mesa had said he and other agents were under attack from a rock-throwing gang, but cellphone videos of the incident indicated that was not true. Mesa grabbed one of the other youths and then, while holding on to him, shot at Sergio, killing him as he peered from behind a bridge piling.
The U.S. Court of Appeals for the 5th Circuit has twice held that the suit cannot go forward.
It was a “tragic event,” Judge Edith Jones wrote, but not one for which the boy’s family can sue Mesa.
Congress has failed to “create private rights of action against federal officials for injuries to foreign citizens on foreign soil,” Jones wrote. “It is not credible that Congress would favor the judicial invention of those rights.”
The U.S. Court of Appeals for the 9th Circuit went the other way in the Arizona case.
U.S. Border Patrol Agent Lonnie Swartz fired across the border in 2012 and killed 16-year-old José Antonio Elena Rodríguez, who had been walking down a street in Nogales parallel to the border fence.
Swartz was charged with murder and acquitted, although the government has indicated it may retry him for manslaughter. In the meantime, the teenager’s mother filed suit against Swartz, and a divided panel of the 9th Circuit said her suit could continue.
“This case involves the unjustifiable and intentional killing of someone who was simply walking down a street in Mexico and who did not direct any activity toward the United States,” wrote Judge Andrew J. Kleinfeld.
The courts’ disagreement concern a 1971 Supreme Court decision, Bivens v. Six Unknown Named Agents. The court allowed people to sue over unconstitutional actions by federal officials, even if such suits had not been explicitly authorized by Congress.
But since then, the court has been more likely to restrict the right than expand it. The justices looked at the Texas case but did not reach a conclusion in 2017.
The justices said it would be “imprudent” to decide until the 5th Circuit reconsidered the case in light of a separate Supreme Court decision issued about the same time.
In that case, the high court reinforced protections for government officials, who are generally shielded from civil lawsuits when they have acted in good faith in carrying out their duties.
The case accepted Tuesday is Hernández v. Mesa.