The US Supreme Court issued a 5-4 decision in Hernandez v. Mesa on Tuesday, holding that the parents of a Mexican child who was shot and killed by a border official have no right to seek a remedy in American civil court. The child, Jesus Hernandez, had been playing with friends in a dry culvert that straddles the US-Mexico border between El Paso, Texas and Ciudad Juarez. Border Patrol agent Jesus Mesa fired at Hernandez from the US side of the culvert, and the bullet struck the boy on the Mexican side, where he died.
Writing for the Court, Justice Alito reasoned that because the international character of the incident could be seen to implicate foreign policy and national security concerns, the court held that it must exercise “caution” that should “counsel hesitation” before allowing the claims. Because the political branches conduct diplomacy, the court held, it should be them alone who may decide what sort of redress is available in this case.
The executive branch, wrote Justice Alito, “has taken the position that this incident should be handled in a particular way—namely, that Agent Mesa should not face charges in the United States nor be extradited to stand trial in Mexico.” Allowing a jury to decide the officer’s liability, the government claimed, “would risk the embarrassment of our government abroad” if the outcome differed from Border Patrol’s own decision not to charge the officer. To avoid this step into the diplomatic fray, the court held that it must “have respect for the separation of powers” and decline to be the branch of government that would authorize a remedy.
Justice Ginsberg penned a dissent, joined by Justices Kagan, Sotomayor, and Breyer. She asserted that the court’s choice not to allow a remedy was itself a step into the diplomatic fray. The Mexican government had submitted to the court that the thing that would be worst for US-Mexico relations would be an outcome in which the parents had no avenue for relief. Additionally, the US is party to the International Covenant on Civil and Political Rights, which was ratified by the Senate in 1992. That multilateral human rights instrument “require[s] the provision of effective and enforceable mechanisms by which a victim of an unlawful arrest or detention or a miscarriage of justice may seek and, where justified, obtain compensation from either the responsible individual or the appropriate governmental entity.”