Justices to Hear Case of U.S. Agent’s Shooting of Teenager Across the Mexican Border

https://www.nytimes.com/2019/05/28/us/politics/supreme-court-mexican-border-shooting.html

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WASHINGTON — The Supreme Court agreed on Tuesday to decide whether the parents of a teenager killed by an American agent shooting across the Mexican border may sue him in federal court. The justices also issued a decision limiting suits by people who claim they were arrested for exercising their First Amendment rights.

The case concerning the shooting, Hernandez v. Mesa, No. 17-1678, started in 2010, when Jesus Mesa Jr., a border guard, shot a fleeing 15-year-old boy in the head, killing him. The boy, Sergio Hernández Guereca, had been playing with friends in the dry bed of the Rio Grande and was in Mexico when he was struck.

The United States Court of Appeals for the Fifth Circuit, in New Orleans, said Sergio’s family could not sue Mr. Mesa.

“This is not a close case,” Judge Edith Jones wrote for the majority. Congress could pass a law allowing suits against federal officials by “aliens injured abroad,” she said. But without such a law, she wrote, federal courts should not “interfere with the political branches’ oversight of national security and foreign affairs.”

The Supreme Court has considered the case once before, but it did not issue a definitive ruling. It is likely to do so after it hears arguments in the term that starts in October.

The central question in the case is whether Congress must authorize lawsuits like the one brought by Sergio’s parents.

In 1971, in Bivens v. Six Unknown Named Agents, the Supreme Court ruled that congressional authorization was not always needed in suits against federal officials claiming violations of constitutional rights. But the court has grown increasingly uneasy about the decision, which concerned the unconstitutional search of a home in Brooklyn, and it has cautioned that the ruling should not be extended lightly to new contexts.

The government of Mexico had urged the Supreme Court to hear the case against Mr. Mesa. “It is a priority to Mexico to see that the United States has provided adequate means to hold the agents accountable and to compensate the victims,” Mexico’s brief said. “The United States would expect no less if the situation were reversed and a Mexican government agent had killed a U.S. national.”

The First Amendment case decided on Tuesday, Nieves v. Bartlett, No. 17-1174, arose from an encounter at the weeklong Arctic Man festival in Alaska, “an event known for both extreme sports and extreme alcohol consumption,” Chief Justice John G. Roberts Jr. wrote for the majority. “The mainstays are high-speed ski and snowmobile races, bonfires and parties.”

“During that week,” the chief justice wrote, “the Arctic Man campground briefly becomes one of the largest and most raucous cities in Alaska.”

One participant, Russell P. Bartlett, was arrested after yelling at police officers and refusing to answer questions. Afterward, Mr. Bartlett said, one officer told him, “Bet you wish you would have talked to me now.”

He was charged with disorderly conduct and resisting arrest, but prosecutors dropped the charges, saying it was too expensive to pursue them given the distances involved. Mr. Bartlett sued, saying he had been arrested for exercising his First Amendment rights.

The case was the court’s third attempt to answer the difficult question of whether the existence of probable cause was always enough to defeat a lawsuit claiming retaliatory arrest.

Last year, the court ruled that Fane Lozman, a critic of a Florida city who was arrested at a City Council meeting, could pursue a case for retaliatory arrest, but only because the city appeared to have had an established and official policy of harassing him. The court also avoided providing an answer in a 2012 case concerning Secret Service agents.

In 2006, the court ruled in Hartman v. Moore that government officials could not be sued under the First Amendment for retaliatory prosecutions where there was probable cause to pursue the prosecution.

On Tuesday, Chief Justice Roberts wrote that the same rule should apply to arrests, with one exception. Suits can proceed, he said, “when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”

Justices Stephen G. Breyer, Samuel A. Alito Jr., Elena Kagan and Brett M. Kavanaugh joined the majority opinion in the case. Justice Clarence Thomas joined most of the opinion, though he would have done without the exception.

Justices Ruth Bader Ginsburg and Neil M. Gorsuch issued partial dissents, with Justice Ginsburg noting that the power to arrest “can be abused to disrupt the exercise of First Amendment speech and press rights.”

In her own dissent, Justice Sonia Sotomayor warned that “the majority’s approach will yield arbitrary results and shield willful misconduct from accountability.”