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Justices: Border Agents Who Shoot Foreign Nationals Can't Be Sued


A sharply divided Supreme Court has ruled that the parents of a teenage boy who was shot by a U.S. Border Patrol agent cannot sue the agent for damages. Here's NPR's legal affairs correspondent, Nina Totenberg.

NINA TOTENBERG, BYLINE: In 2010, 15-year-old Sergio Hernandez and his friends were playing chicken at the U.S.-Mexico border, running up and touching the border fence and then running away and hiding. Video of the scene shows Sergio peeking out from behind a railroad trestle on the Mexico side as Agent Jesus Mesa Jr. points a gun, fires and kills the boy. When the U.S. government declined to prosecute the agent or turn him over to Mexican authorities to face murder charges there, the boy's parents sued the agent for damages, contending he violated the U.S. Constitution by depriving Hernandez of his life.

The suit was brought under a 1971 Supreme Court ruling that allowed such damage claims against officers who act in bad faith. But on Tuesday, the Supreme Court threw out the suit, moving to cut the heart out of the 1971 ruling. The vote was 5-4 with the court's conservative justices refusing to allow damage suits for cross-border shootings and the court's liberal justices castigating the court majority for giving a free pass to the, quote, "rogue actions" of law enforcement officers.

Writing for the conservative court majority, Justice Samuel Alito said in essence that the court has come to realize the folly of its earlier decision and has thus sought to limit its effect. Justices Clarence Thomas and Neil Gorsuch would have gone further and outright overturned the court's 1971 decision. Writing for the dissenters, Justice Ruth Bader Ginsburg said that it should not matter one whit that the boy was standing on the Mexican side of the embankment and not the U.S. side. As for Mexico, it perceives cross-border shootings to be a persistent problem. Indeed between 2005 and 2013, there were 42 cross-border shooting deaths, and that number has increased in recent years.

Mexico filed a brief in the case, saying the U.S. should hold agents accountable and pointing out that the U.S, quote, "would expect no less if a Mexican government agent standing in Mexico and shooting across the border had killed an American child standing on U.S. soil." Nina Totenberg, NPR News, Washington.

(SOUNDBITE OF WUDO BEATZ'S "FAR WEST (INSTRUMENTAL)") Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.