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High court seems split in case of death near border

Mark Sherman
Associated Press

Washington — Examining a tragic shooting death on the U.S. border with Mexico, a divided Supreme Court on Tuesday puzzled over the rights of foreigners to sue in American courts.

The case involving a Mexican teen slain by a U.S. Border Patrol agent’s gunshot, which traveled across the border, elicited questions about how a ruling could affect victims of American drone strikes. The court battle over President Donald Trump’s ban on travelers from seven majority Muslim nations also lurked in the background: While the legal issues are different, both issues have courts weighing the rights of foreigners.

A 4-4 tie could provide Judge Neil Gorsuch an early opportunity to cast a key vote if he is confirmed to the court before the term ends in late June.

Tuesday’s case arose from a June 2010 shooting in the wide, concrete-lined ditch — actually the dry bed of the Rio Grande river — that separates El Paso, Texas, from Ciudad Juarez, Mexico.

The agent was on the U.S. side of the border when he fired his gun, striking Sergio Adrian Hernandez Guereca, who was on the Mexican side.

U.S. officials chose not to prosecute Agent Jesus Mesa Jr. in the killing of the Mexican teenager, and the Obama administration refused a request to extradite him so he could face criminal charges in Mexico.

Lower courts dismissed the parents’ lawsuit. The Supreme Court is considering whether noncitizens who are injured or killed outside the United States can have their day in American courts.

The parents argued that the lawsuit is their only chance for some measure of justice in their son’s death, and some justices appeared to agree.

In past cases, courts that have limited the right to sue have “been able to point to some alternative remedy,” Justice Elena Kagan said. “And here, there really is nothing.”

Kagan and the other three liberal justices indicated they would support the parents’ lawsuit because the shooting happened close to the border in an area in which the two nations share some responsibilities, including for upkeep.

But Justice Anthony Kennedy and other conservative justices suggested that the boy’s death on the Mexican side of the border was enough to keep the matter out of U.S. courts.

Kennedy noted the court has been reluctant to allow civil rights lawsuits like the one the parents filed, especially when they may affect international relations. “This is a sensitive area of foreign affairs where the political branches ought to discuss with Mexico what the solutions ought to be,” Kennedy said.

Other justices worried about a decision that could open courthouse doors to victims of U.S. drone strikes, or other military actions. “How do you analyze the case of a drone strike in Iraq where the plane is piloted from Nevada?” Chief Justice John Roberts asked.