A United States Border Patrol officer sits in his vehicle, surveying the new steel beam border fence overlooking the town of Nogales, Arizona.
A United States Border Patrol officer sits in his vehicle, surveying the new steel beam border fence overlooking the town of Nogales, Arizona. (Shelley Dennis/BV Images via iStockphoto.com)

The U.S. Supreme Court on Monday asked the Obama administration for its views on a controversial case that tests whether a U.S. Border Patrol agent violated the Fourth Amendment when he shot and killed a Mexican teenager standing on Mexican soil.

The high court’s action in Hernandez v. Mesa is a signal that the justices are interested in the dispute and could grant full review at a later date. Several U.S. government agencies were named parties at earlier stages of the case, but in the appeal now before the court, only the Border Patrol agent is named as a defendant.

The parents of Sergio Hernandez, represented by Deepak Gupta of Washington’s Gupta Wessler, are asking the high court to overturn a decision by the U.S. Court of Appeals for the Fifth Circuit that held the Fourth Amendment’s protection against the use of excessive deadly force did not apply because their son was a Mexican citizen with no significant voluntary connection to the United States and he was killed on Mexican territory.

In his petition, Gupta tells the justices that if the Fifth Circuit decision is left standing, it “will create a unique no-man’s land—a law-free zone in which U.S. agents can kill innocent civilians with impunity.”

The appellate court’s decision was based on a 1990 high court decision, United States v. Verdugo-Urquidez, which held that the Fourth Amendment does not protect nonresident aliens without any substantial connections to the United States.

Gupta and supporting amicus briefs argue that the Fifth Circuit was wrong to apply the formalistic test announced by Verdugo-Urquidez. Instead, the appellate court, they contend, should have looked to Justice Anthony Kennedy’s majority opinion in Boumediene v. Bush (2008) in which he said habeas corpus applies to Guantánamo Bay detainees. Kennedy wrote that “questions of extraterritoriality turn on objective factors and practical concerns, not formalism.”

“This court should grant certiorari ‘to clarify the reach of Boumediene and apply Justice Kennedy’s functional test’ to these all-too-frequently ‘recurring’ facts,” writes Gupta.

Randolph Ortega of El Paso’s Ortega McGlashan Hicks & Perez, representing the agent, Jesus Mesa Jr., contends that Boumediene is limited to a specific constitutional provision: the suspension clause. Verdugo-Urquidez is “clearly established” law on the extraterritorial application of the Fourth and Fifth amendments, Ortega argues.

The Hernandez family and the agent, Jesus Mesa Jr., disagree on what exactly happened in 2010 when Sergio was with three friends in the concrete culvert separating El Paso, Texas, and Ciudad Juarez, Mexico.

In his petition, Gupta said Sergio and his friends were playing a common game in plain view of the Paso del Norte port of entry—one of the busiest border crossings in the United States. 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.

Border guards patrolling the culvert on bicycles seized one of the boys while Sergio ran to a pillar beneath the bridge on the Mexican side. Mesa, formally in the United States, according to the petition, fired his pistol and hit Sergio in the head, killing him. The agents did not attempt to get medical aid for him but got back on their bicycles and left.

However, Ortega and Mesa counter that Mesa’s use of force was a result of Hernandez and the other individuals surrounding him and throwing rocks at him while refusing his verbal commands to stop. In fact, he alleged, Sergio had been arrested twice before for alien smuggling and had been given voluntary returns to Mexico due to his juvenile status. And it is not uncommon, he said, for human traffickers to use rock throwing as a way to hamper law enforcement efforts to apprehend alien smugglers in the border regions.

Several cellphone videos that surfaced after the incident contradicted the version presented by Mesa and the FBI, according to the petition.

The Supreme Court’s action does not give the U.S. solicitor general a deadline for submitting the government’s views, and it often takes several months before a brief is filed.