Immunity Run Amok

One of the things the 2016 elections laid bare is that ordinary Americans are tired of the powerful protecting and enriching themselves. At the heart of the American ideal of government of the people, by the people, and for the people is that no one is above the law. The United States Supreme Court is deciding a case that will likely impact how the government applies that concept to its own power, when law enforcement officers shoot people without justification. It is a particularly important case as the Trump administration talks about tougher policing and building more border walls.

The case, Hernández v. Mesa, involves a United States border agent who shot and killed an unarmed boy, at close range, through a border fence between El Paso, Texas and Juarez, Mexico. The agent stood on the U.S. side and the boy, Sergio Hernández, played on the Juarez side. Sergio and his friends were playing a game of dare on the Mexican side: running up a steep incline to touch the barbed wire border fence and then scampering back down. The boys played their game in plain sight of the agents, near a populated border crossing. As the boys played, one of the agents drew his gun and shot Sergio in the head as he ran away down the slope. The agent did not offer Sergio any medical help – instead he and his cohorts bicycled away and left Sergio there to die.

So what happens to the border agent who callously killed Sergio? The Justice Department declined to prosecute the agent. The FBI claimed the agent was acting in self-defense because the boys threw rocks at him, but cellphone videos of the shooting quickly debunked that lie. Mexico charged the agent with murder, but the United States has refused to extradite him to face the charges. As for disciplining the agent, if it occurred, it occurred in secret and was likely at most just a verbal reprimand. That’s it.

So, seeking some measure of justice and accountability, Sergio’s parents sued the border agent for excessive force. But this effort fell into a legal no-man’s land: had Sergio been killed on the United States side, he would have been protected by our constitution; had he been an American citizen, he would have been protected regardless of which side of the fence he was on. But the United States Fifth Circuit Court of Appeals held that, because Sergio was a Mexican citizen on the wrong side of the fence, his family could not sue the border agent for excessive force because of a doctrine called qualified immunity.

Qualified immunity is basically a “good faith” immunity from being sued. It protects public officials like police officers or border agents from being sued for constitutional violations if their conduct does not violate “clearly established” constitutional rights “of which a reasonable person would have known.” So to sue the border agents, Sergio’s family had to prove that he had a clearly established right under our constitution not to be gunned down by a border agent without justification or provocation. Sergio’s family had to prove that this right was clearly established – in other words, that the agent reasonably should have known that he couldn’t kill children on the Mexican side of the fence. The court held that because Sergio was not an American citizen and was not on American soil, his right to be free from excessive force was not clearly established and his family could not sue.

In the face of this horrendous decision absolving the agent of his misconduct, the Supreme Court will need to answer questions about the scope of qualified immunity and the reach of our constitutional protections beyond our borders. At a minimum, the next border agent who takes a pot shot at a person for no reason will know in advance whether his violence is unconstitutional. But with all the immigration raids, talk of border walls, and efforts to decrease police accountability since Trump came to power, this decision will provide insight into what sorts of protections all of us can expect from the Court.