Stephen Gottlieb: The Courts Stand Up For Impunity
In one of the last cases to be decided this term of Court, the Supreme Court described the death of Sergio Hernandez as “a tragic cross-border incident.” Indeed. I want to make clear that I care deeply about this case. Several friends and I helped write an amicus brief to the Court about it.
Sergio Hernandez was 15 years old. The Court continued, “According to the complaint,” which the Court must accept as true at this early stage of the proceedings, “Hernandez and his friends were playing a game in which they ran up the embankment on the United States side [of the Mexican border], touched the fence, and then ran back down.” Border Patrol Agent Mesa caught and detained one of Hernandez’ friends but “Hernandez ran across the international boundary into Mexican territory and stood by a pillar that supports a railroad bridge spanning the culvert” between the c ountries. At a distance – the Court wasn’t precise but the culvert was up to 270 feet wide – Agent Mesa shot and killed Sergio Hernandez though the Agent was in no danger.
Notice the issues that the District, Appellate and Supreme Courts have been “struggling” with.
First, the Court had to deal with whether the Constitution itself authorizes a remedy when Congress has not provided one for the violation of constitutional rights. In other words, do our rights exist at the pleasure of Congress? That’s known technically as the Bivens question.
Second, do foreigners have any constitutional rights or may American officials kill them at pleasure? The Court of Appeals had decided that Sergio had no rights under our Constitution.
Third, even if Sergio’s rights were violated, did the Agent have “immunity … from civil liability.” They would have immunity if “their conduct ‘does not violate clearly established … constitutional rights.” So the fourth question is whether killing foreigners across the border violates any clearly established rights?
Along the way the Court commented that some of the issues in the case are “sensitive and may have consequences that are far reaching.” Sounds like the Court was thinking about foreign relations. The Bible just says “justice, justice shalt thou pursue.” 
The Court finished by noting that the case “result[ed] in a heartbreaking loss of life” but thought the Court of Appeals should think about those issues before the Supreme Court reached any final resolution about the issues in the case:
- whether foreigners have any rights that American officials are bound to respect;
- whether there is any remedy for murder;
- whether murder by a government official is a clear violation of a constitutional right?
Abroad, and we use the same term when describing behavior in other countries, people who are protected from any responsibility for the harm they do are described as having impunity. It does not describe freedom. It describes lawlessness, in countries run for crime bosses and rapacious masters.
Think now about shootings of Americans in America by police officers, shootings of Americans with their backs turned, with their hands up, with their house keys in their hands. Are we now a nation with impunity? Does freedom still live here or are too many people here forced to bow, scrape and beg those with the power to kill. If there are people who, in the language of Dred Scott, have “no rights which … [American officials are] bound to respect,” does that mean that they and we are treated like the slave in Dred Scott?
 Hernandez v. Mesa, U.S. Sup. Ct. No 15-118, decided June 26, 2017.
 Brief for Amici Curiae Legal Historians in Support of Petitioners in Hernandez v. Mesa, U.S. Sup. Ct. No 15-118.
 Deut. 16:20.
 Dred Scott v. Sandford, 60 U.S. 393, 407 ((1856).
Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Unfit for Democracy: The Roberts Court and the Breakdown of American Politics. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran.
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