Source: Law 360, by Kurt Orzeck
Law360, Los Angeles (March 2, 2016, 5:39 PM ET) -- The U.S. solicitor general is arguing to the Supreme Court that the Fifth Circuit correctly ruled the border patrol agent who shot and killed a Mexican teen standing in Mexico from across the U.S. border in Texas had qualified immunity, the solicitor general said Tuesday.
Opposing a petition for writ of certiorari filed by the family of 15-year-old Sergio Adrian Hernandez Guereca, Solicitor General Donald B. Verrilli Jr. argued in a brief dated last month that Border Patrol Agent Jesus Mesa couldn't be sued by the teen's family under the Fourth or Fifth Amendments.
The Fifth Circuit had found that Mesa couldn't be sued under the Fourth Amendment because Hernandez was a Mexican citizen, on Mexican soil, and had no "significant voluntary connection" to the U.S. The appeals court also found that the border patrol agent's actions did not violate Hernandez's Fifth Amendment due process rights.
Hernandez's family argued that if the Fifth Circuit decision is upheld it will create a "unique no-man's land — a law-free zone in which U.S. agents can kill innocent civilians with impunity."
Verrilli in February's brief called Hernandez's June 2010 death tragic but said the family's claim "is hyperbole. The executive branch's decision not to extradite an individual in this particular case ... does not alter the Mexican courts' jurisdiction over any tort or crime that occurred when someone in Mexico was struck by a bullet."
Mesa was on U.S. soil when he shot and killed Hernandez, who was standing on Mexican soil. Mesa told authorities he shot the teen after detaining one of his friends and that someone had been throwing rocks at him before he opened fire.
In a series of cases, the family filed suits against Mesa, his supervisors and the U.S. government, claiming assault, negligence and use of excessive force.
The family argued to the Fifth Circuit that the Supreme Court's Boumediene v. Bush decision, which found detainees at Guantanamo Bay had a constitutional right to habeas corpus, applies to Hernandez's case and shows the teen's rights were violated. But the Fifth Circuit disagreed in April, ruling en banc that the Boumediene case was limited to its specific factual circumstances.
Three months later, Hernandez's family asked the Supreme Court to review their case against Mesa. The federal government in late August waived its right to file a response to the petition for a writ of certiorari on behalf of the U.S. and others, court papers said.
The Supreme Court in late November invited the solicitor general to explain the government's position in a qualified immunity case.
Verrilli in February's brief backed the Fifth Circuit's en banc finding, saying the border area in no way resembles the de facto sovereignty of Guantanamo Bay. Hernandez's family thus had no grounds to argue that the teen was in an area of Mexico under exclusive U.S. control, the opposition brief said.
The solicitor general also noted that, while the U.S. Department of Justice had decided not to bring charges against Mesa, it had lodged a murder charge against another border patrol agent, Lonnie Swartz, in a similar case.
Like Mesa, Swartz was in the U.S. when he shot and killed a Mexican citizen in Mexico, according to court papers. He has pleaded not guilty, and his trial is set for March 22.
Robert C. Hilliard of Hilliard Munoz Gonzales LLP, which is representing Hernandez's family, told Law360 on Wednesday that they are confident the Supreme Court will reverse the Fifth Circuit's decision.
"The solicitor general's response is past troubling, as he is determined to protect the unfettered, unjustified use of deadly force by agents who use border kids as target practice," Hilliard said. "Solicitor General Verrilli may as well come out and just say what is the real undercurrent of his brief and of the [Obama] administration's position: 'Come on, we are just talking about a Mexican kid here.' Mexico must be surely shaking its head at what our country is becoming."
Attorneys for Mesa didn't immediately respond to requests for comment on Wednesday. Representatives for the federal government didn't immediately respond to a request for additional comment on Wednesday.
The U.S. government is represented by Solicitor General Donald B. Verrilli Jr., Principal Deputy Assistant Attorney General Benjamin C. Mizer and attorneys Mark B. Stern and Henry C. Whitaker.
Hernandez's family is represented by Steve D. Shadowen of Hilliard & Shadowen LLP and Robert C. Hilliard of Hilliard Munoz Gonzales LLP.
Mesa is represented by Randolph J. Ortega and Louis E. Lopez Jr. of Ortega McGlashan Perez & Hicks PLLC.
The case is Jesus Hernandez et al. v. Jesus Mesa Jr. et al., case number 15-118, in the U.S. Supreme Court.
--Additional reporting by Michelle Casady and Bonnie Eslinger. Editing by Catherine Sum.