- The Washington Times - Tuesday, February 21, 2017

The Supreme Court struggled Tuesday to define limits to the Constitution’s Fourth Amendment in a tragic case in which a U.S. Border Patrol agent fired his weapon and killed a 15-year-old boy on the Mexican side of the line.

Some of the justices feared that if they went too far, they could open the U.S. military to claims from victims of drone attacks in foreign countries. But the court’s liberal wing worried that unless they gave the family its day in court, it had no recourse to punish rogue agents.

“You have a very sympathetic case,” Justice Stephen G. Breyer told the attorneys for the family of Sergio Hernandez, the boy killed in 2010 by the shot fired by agent Jesus Mesa Jr.

Mr. Mesa was cleared after a probe by the U.S. government, which said it could not establish that he violated Border Patrol policies.

The family says it wants justice in the courts. The only problem: Lower courts have ruled that since the boy was in Mexico, the Fourth Amendment protections don’t apply in this case.

Robert C. Hilliard, the attorney for the Hernandez family, cast his case as a defense for other Mexicans who might find themselves in the same situation. He said there is an “ongoing domestic routine law enforcement issue” that needs to be solved.

“We’re here because the interaction of the Border Patrol in this area, the government has taken the position that on the border, the Constitution turns off if the deadly force goes across the border,” he said.

He said there have been 10 instances in which the Border Patrol has fired from the U.S. into Mexico and killed someone.

Ahead of Tuesday’s oral argument, some analysts said the case could give an indication of how the justices might rule on the extreme vetting executive order issued by President Trump. That order has been mostly blocked by federal courts, which ruled that potential visitors outside the U.S. and foreigners inside the U.S. illegally have constitutional rights that must be respected.

But the justices didn’t stray far afield Tuesday. Instead, they debated whether they could draw a line that would allow the family to sue in this case but wouldn’t open a whole category of lawsuits against U.S. troops who create collateral damage.

“How do you analyze the case of a drone strike in Iraq where the plane is piloted from Nevada?” Chief Justice John G. Roberts Jr. asked Mr. Hilliard.

Justice Ruth Bader Ginsburg waved aside those concerns, saying “that’s a military operation” that could be distinguished from a border encounter involving a federal law enforcement officer.

The chief justice did not seem swayed by the distinction, particularly in a tort claim against a federal employee.

The case could turn on the exact spot where the slaying occurred. The boy was shot in a culvert that is maintained by both the U.S. and Mexico — though the ground where he fell is clearly on the Mexican side, the attorneys said.

Some of the court’s liberal justices said that if the U.S. government has some authority over the territory, that could be a zone where Fourth Amendment protections against searches and seizures — and in this case unlawful death — would apply.

But Randolph J. Ortega, Mr. Mesa’s attorney, said the matter of the border can’t be minimized.

“Wars have been fought to establish borders. The border is very real,” he said.

Mexico had asked for Mr. Mesa to be extradited to face charges there, but the U.S. government refused. The Mexican government then backed the family’s lawsuit in court.

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