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Border Patrol agent's shooting of Mexican teenager heads to Supreme Court

Michael Doyle, McClatchy Washington Bureau on

Published in Political News

WASHINGTON -- Recurring border tensions between the United States and Mexico will soon captivate the Supreme Court, as justices consider the case of a Texas-based U.S. Border Patrol agent who shot and killed an unarmed teenager standing on Mexican soil.

In a fight that pits the Mexican government against the Trump administration, justices on Tuesday must sort through whether the U.S. Constitution covered 15-year-old Sergio Hernandez when he was horsing around in a culvert separating El Paso, Texas, and Juarez, Mexico. Hernandez was on the Mexican side of the invisible borderline when he was shot in the head.

"Like countless children before them," Hernandez family attorneys wrote, "Sergio and his friends were playing a game in which they dared each other to run up the culvert's northern incline, touch the U.S. fence and then scamper back down to the bottom."

The family, supported by the Mexican government, immigrant advocacy groups and others, wants to sue the agent, Jesus Mesa Jr., who shot Hernandez on June 7, 2010. Mesa, supported by the Justice Department, contends the shooting was justified and that, more critically, the constitutional prohibition on unjustified use of deadly force did not apply.

"The United States clearly exercises no power or authority over the territory where Hernandez was standing when he was shot," Mesa's El Paso-based attorneys wrote in a legal brief.

Mesa's attorneys will share time during the hourlong oral argument Tuesday morning with a career Justice Department lawyer, who will reinforce the case that, as the department put it in a brief, "aliens injured abroad" cannot sue individual federal officers.

The Mexican government hired a U.S. law firm to file a competing legal brief supporting the Hernandez family in which it contended that "shootings at the border are, unfortunately, far from a rare occurrence."

It's also an argument that resurrects past controversies, including whether the Constitution extends to Guantanamo detainees, even as it fans a Trump-era debate over border security efforts that sometimes turn lethal.

From October 2010 to August 2016, Customs and Border Patrol officers reported 243 incidents of lethal force involving firearms, most along the 2,000-mile U.S.-Mexico border, according to government records cited in the Mexican government's brief.

"It's important, and it's important for a number of reasons," Mary Kenney, senior attorney with the American Immigration Council, a nonprofit advocacy group, said of the case in an interview Thursday. "It's important for holding government agents accountable for their actions."

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