How To Get Away with Murder Hernández v. Mesa, 140 S. Ct. 735 (2020)
JULIETA MENDOZA
The U.S.-Mexican border es una herida abierta where the Third World grates against the first and bleeds. And before a scab forms, it hemorrhages again, the lifeblood of two worlds merging to form a third country—a border culture.1 Este artículo hablará sobre el caso de homicidio de un joven inocente, Sergio Adrián Hernández Güereca, un mexicano de quince años de edad a quien le dio muerte un agente migratorio de apellido Mesa en la frontera que separa El Paso, Texas de Ciudad Juárez, México.2 Este caso es un prototipo de cómo los mexicanos son objetivo de injusticia en su propio país por el gobierno de los Estados Unidos de América. Este caso en concreto provocó un desacuerdo internacional que afectó las relaciones entre Estados Unidos y México, afectando también directamente las vidas de los mexicanos que viven en la frontera.
This case is about Sergio Adrián Hernández Güereca, a fifteen-year-old Mexican national who lived in Ciudad Juarez, Mexico.3 He and his friends were playing tag, running across the Rio Grande and touching the fence on the El Paso, Texas side and then running back across to the Mexican side, with no intention of crossing permanently onto U.S. soil.4 It was a simple game. As Hernández was running back onto Mexican soil, Agent Mesa fired two shots at Hernández; one struck and killed him on the Mexican side of the border.5 This case became an international affair between the two countries. When no resolution was offered to the family in Mexico, Hernández's parents decided to take matters into their own hands. The parents filed suit against Agent Mesa for damages arising out of the murder of their son, alleging that Mesa violated Hernández’s Fourth and Fifth Amendment rights.6 To support their claims,7 the parents asked the Court to extend Bivens8 to create a damages remedy for cross-border shootings. The Court denied the extension.9 The Court offered one reason for its refusal to extend Bivens: separation of powers among the three branches of government.10 The Court explained that extending Bivens would involve the Court in issues of foreign policy, which is the domain of the political branches.11 The Court reasoned that Congress had not given the Judicial Branch any instruction to extend Bivens.12 Weighing whether the Court should alter the framework established by the political branches in cases where lethal force was unlawfully employed by a border patrol agent,13 the Court explained that judicial inquiry into issues of national security, such as this one, raised separation-of-powers concerns.14 Before Mr. Hernández’s parents filed suit, the Executive Branch had decided not to prosecute Agent Mesa because his actions were “consistent” with Border Patrol policy and training.15 At the time of the shooting, Agent Mesa was acting with “reasonable conduct,” and based on agency standards, there would be no prosecution.16 1. GLORIA ANZALDÚA, BORDERLANDS / LA FRONTERA 3 (1st ed. 1987). 2. Hernandez v. Mesa, 140 S. Ct. 735, 740 (2020). 3. Id. 4. Id. 5. Id. 6. Id. 7. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) (holding that a person claiming to be the victim of an unlawful arrest and search could bring a Fourth Amendment claim for damages against the responsible agents even though no federal statute authorized such a claim). 8. Hernandez v. Mesa, 140 S. Ct. 735 (2020). 9. Id. at 741. 10. Id. at 740. 11. Id. at 744. 12. Id. 13. Id. at 746. 14. Id. at 747. 15. Id. at 744 16. Id.
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