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On The Front Lines

In 5–4 Ruling, U.S. Supreme Court Refuses to Hold U.S. Border Patrol Agent Accountable for Shooting Across Border, Killing a Child at Play

WASHINGTON, DC —In a blow to all persons seeking justice for violations of the Constitution by federal officers, a sharply divided U.S. Supreme Court has ruled 5-4 that a U.S. Border Patrol agent cannot be sued for shooting and killing a young Mexican boy who was playing in a culvert within feet of U.S. territory and posed no threat to anyone. In an amicus brief filed in Hernandez v. Mesa, The Rutherford Institute and a coalition of human rights organization had urged the Supreme Court to reinstate an excessive force lawsuit against a Border Patrol agent (a U.S. citizen on U.S. soil) for shooting across the border at 15-year-old Sergio Hernandez (a Mexican national), who was struck in the head.

Attorney Hope Metcalf of New Haven, Conn., assisted the coalition in advancing the arguments in Hernandez.

“For years now, America has been faced with a crisis over what the Constitution means and to whom it applies. Thus far, the courts have rationalized all manner of human rights abuses by government officials—use of excessive force, extraordinary rendition, torture, waterboarding—as long as those abuses take place outside the United States,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “However, the government should not get a free pass just because it perpetrates its abuses beyond our borders. As Thomas Jefferson advised, all government agents should be bound by the chains of the Constitution.”

In the summer of 2010, 15-year-old Sergio Hernandez and several friends were playing in a concrete culvert that separates El Paso, Texas, from Juarez, Mexico. The borderline between the United States and Mexico runs through the culvert with an 18-foot fence on the U.S. side. As Sergio and his friends played a game where they would run up the U.S. side of the culvert and then scamper back down, a patrol of U.S. border agents approached the boys, seizing one of the boys as he tried to run away. Sergio and the other boys ran back down the culvert embankment onto Mexican territory. After Sergio ran past Border Patrol Agent Jesus Mesa and toward a bridge pillar in the culvert, Mesa allegedly drew his firearm and shot Sergio in the head. At the time the shot was fired, the Border Patrol agent was in U.S. territory and the teenager was in Mexican territory. Soon after the shooting, the U.S. government issued a press release asserting that Mesa shot the 15-year-old in self-defense, however cellphone videos of the incident discredited the claim. When the U.S. government refused to prosecute Mesa or allow his extradition to Mexico to face charges, Sergio’s family filed a civil rights complaint in a federal district court in Texas.

In June 2017, the U.S. Supreme Court ruled the Border Patrol agent was not immune from the lawsuit and remanded the case to a lower court. The lower court subsequently held that border patrol agents cannot be sued for injuries they inflict by shooting across the border. In their amicus brief supporting the Hernandez family, The Rutherford Institute and a coalition of human rights organizations, including Amnesty International, the Center for Constitutional Rights, and Human Rights First, argued that Sergio’s presence in Mexico should not have been a factor in dismissing the excessive force lawsuit because international law supports allowing federal agents to be sued for using unwarranted deadly force against persons who are not on U.S. soil.

Case History

August 19, 2019 • Rutherford Institute Asks U.S. Supreme Court to Uphold Excessive Force Lawsuit Against Border Patrol Agent for Shooting Mexican Child at Play 

June 30, 2017 • U.S. Supreme Court Reinstates Lawsuit Against Border Patrol Agent Who Shot Mexican Teenager in the Head Despite Lack of Threat 

December 14, 2016 • Rutherford Institute Asks U.S. Supreme Court to Hold Gov't Responsible for Using Unwarranted Deadly Force Against People Not on U.S. Soil


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