Wednesday, February 22, 2017

The Reach of the Constitution at the Border

When a 15-year-old boy named Sergio Hernández Guereca was shot to death by a United States border agent in 2010, he was crouching behind a concrete pillar a few steps inside the Mexican border. Had he been on American soil, there’s no question constitutional principles could be invoked in seeking justice for his death. Should those principles not apply because he was standing on the other side of the border?
That was the question the Supreme Court considered on Tuesday, during oral arguments in a lawsuit brought by Sergio’s parents, who believe they should have a right to get justice for his killing.
The court’s decision in this case could have implications for President Trump’s travel ban, which targets noncitizens who are outside the country.
Photo
People mourning Sergio Hernández Guereca at the site where he was killed. CreditAssociated Press
On the day he was killed, Sergio, a Mexican citizen, was playing with friends in the culvert separating El Paso, Tex., and Ciudad Juárez, Mexico. The agent who shot him, Jesus Mesa Jr., claimed it was self-defense, but cellphone videos of the shooting refuted that account, showing that Sergio was 60 feet away, and unarmed, when Mr. Mesa shot him in the head.
American prosecutors declined to charge Mr. Mesa because his bullet hit Sergio in Mexico. Mexican prosecutors charged Mr. Mesa with murder, but the Obama administration refused to extradite him. Sergio’s family filed a civil suit against Mr. Mesa for violating Sergio’s rights under the Fourth Amendment, which prohibits the unreasonable use of lethal force, and the Fifth Amendment, which bars the taking of life without due process.
In 2015, a federal appeals court in Texas threw out those claims because, it said, Sergio was not an American citizen, and didn’t have enough “voluntary connections” with the United States to be covered by the Constitution. But core constitutional rights aren’t so easily cordoned off — the Supreme Court said so in 2008 when it ruled that noncitizen prisoners held in Guantánamo Bay, Cuba, had the right to challenge the legality of their detention.
In that case, the court rejected a rigid test for deciding when the Constitution applies outside American borders, favoring instead a context-specific approach. “To hold the political branches have the power to switch the Constitution on or off at will,” Justice Anthony Kennedy wrote for the majority, would lead “to a regime in which Congress and the president, not this court, say ‘what the law is.’ ”
The Hernández case clearly would benefit from considering context, like the fact that there was no marked border in the area where Sergio was shot. Nor is the Hernández killing unique in the border area; one 2013 report found that border agents and officers killed at least 42 people in the preceding eight years. Another report found that at least six Mexicans were shot and killed in cross-border shootings by American agents between 2008 and 2013. In all those cases, including Mr. Mesa’s, there were no criminal or civil penalties.
Justice Kennedy suggested during oral argument that the issue of cross-border shootings should be addressed by the political branches. The problem is that there is now no accountability and no remedy. Currently an unarmed boy standing just south of the border can be killed with impunity by an American border agent, but not if he happens to be a few feet to the north. As Justice Ruth Bader Ginsburg asked, “That doesn’t make a whole lot of sense, does it, to distinguish those two victims?”
The Constitution should be broad enough to apply to people like Sergio, and his family should be allowed to sue in American courts.

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