The nation's highest court on Monday sent a case involving the cross-border shooting death of a Mexican teenager back to the USA 5th Circuit Court of Appeals for reconsideration.
The Supreme Court on Monday also ordered two other cases that touch upon immigrant rights to be argued for a second time in the fall so that Gorsuch can participate, likely breaking a tie vote.
Mesa does not dispute he shot Sergio in the head in June 2010.
Mesa shot and killed Hernandez in a concrete-lined ditch bed of the Rio Grande river, which separates El Paso, Texas, from Ciudad Juarez, Mexico. Mesa fired two shots across the border, one of which struck Hernandez in the face, killing him.
After an investigation, United States authorities said Mesa had not broken the law. USA authorities have asserted that Mesa shot Hernandez in self-defense.
Because Sergio is not a US citizen and was shot outside the country, the 5th Circuit said, the family could not sue on the grounds that Mesa violated constitutional bans on unreasonable seizures and unjustified use of lethal force. A district judge dismissed the charges because Hernandez was a Mexican national and was on Mexican soil when the shooting occurred. While he may have had a Fifth Amendment claim, the circuit court said Mesa enjoyed qualified immunity for his actions. The court held in that case that violating a person's Fourth Amendment rights, which guarantee protection from illegal search and seizure, gives them the right to pursue a legal challenge against a federal agent. Today, the United States Supreme Court checked the actions and power of the executive branch. "Facts an officer learns after the incident ends-whether those facts would support granting immunity or denying it-are not relevant", the Supreme Court said. "Whether petitioners may recover damages for that loss in this suit depends on questions that are best answered by the Court of Appeals in the first instance". This Court has taken that approach on occasion.
The shooting brought a torrent of worldwide criticism among human rights, border and immigration organizations, all demanding a full investigation and prosecution. "The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion".
In a dissent, Justice Clarence Thomas said the facts of the case differ considerably from those at issue in Bivens and its progeny, "most notably ... this case involves cross-border conduct, and those case did not".
The teenager's family appealed to the U.S. Supreme Court, and in October 2016, the high court agreed to consider the case. Six Unknown Named Agents of Federal Bureau of Narcotics. The video revealed the boys had been playing a game in which they ran to the border fence and touched it.