Oh goodie, the Roberts Court is doing things again.
Tuesday, in an absolutely horrific opinion, the Supreme Court ruled that the parents of a Mexican child shot and killed by a Border Patrol agent could not sue over his death.
Because why shouldn't we let federal law enforcement murder children with impunity?
Everything about this, from what happened to what SCOTUS has to say about it, is awful.
The opinion is exactly what it sounds like. Using justifications of vague concepts like "national security" and "border protection," Justice Samuel Alito's majority opinion heartlessly describes the fatal shooting and blithely brushes off arguments that will likely affect people's rights for decades to come.
My face basically looked like this the entire time I read it:
Yup, goatee and all.
Some background for you
The facts of this case are, as you might imagine, horrendous. Sergio Adrián Hernández Güereca was a 15-year-old Mexican boy. According the lawsuit, he was playing a game with some friends at a dry riverbed that separates the US from Mexico. The kids would run up the culvert, touch the fence at the American border, then run back. At the time of the shooting Border Patrol Agent Jesus Mesa, Jr. had no idea if Hernándezwas a US or Mexican citizen.
Here's how RBG described what happened:
The game Hernández and his friends were playing involved running up the embankment on the United States side, touching the barbed-wire fence, and running back down to the Mexican side. While the game was ongoing, Border Patrol Agent Jesus Mesa, Jr., appeared on his bicycle and detained one of Hernández's friends as he was running down the embankment on the U. S. side. Hernández, who was unarmed, retreated into Mexican territory. Mesa pointed his weapon across the border, "seemingly taking careful aim," and fired at least two shots. [...] At least one of the shots struck Hernández in the face, killing him.
Mesa, on the other hand, claims the kids were trying to cross the border illegally and *gasp!* threw rocks at him. I know I sure trust the story of the man who was trying to not go to prison and get sued to oblivion instead of the boys who watched their friend die.
Even if we took Mesa's word for it, kids throwing rocks and running across a border hardly justifies lethal force. But in any case, because this suit was decided on a motion to dismiss, the courts were required to take the facts alleged in the complaint as true --which means that, for the purposes of this litigation, Hernández was just a kid, playing a game with his friends. Nonetheless, the majority opinion felt the need to highlight the killer's side of things, I guess to make themselves feel better about what they were doing.
LOL JK, none of them have souls. It was about trying to make themselves look better to the Fox News crowd.
So all of that is just awesome.
Oh and if you're wondering at this point, like I was, why Officer Mesa isn't in prison, it's because the DOJ reviewed the shooting and found that "Agent Mesa had not violated Customs and Border Patrol policy or training[.]"
Yeah, that's right. It is apparently the official policy of the US Departments of Justice and Homeland Security that it's totally fine for Border Patrol agents to shoot and kill unarmed children. In the end, he wasn't even disciplined.
And now, writes Reich Minister Alito, that is now also the official position of the United States Supreme Court.
We presume that Border Patrol policy and training incorporate both the Executive's understanding of the Fourth Amendment's prohibition of unreasonable seizures and the Executive's assessment of circumstances at the border.
Some lawsplaining
Bivens v. Six Unknown Named Agents is a 1971 Supreme Court case that allows people whose constitutional rights have been violated by federal officers to sue in federal court. Reactionaries, authoritarians, and racists have hated Bivens since it was decided, because it gives rights to people instead of law enforcement. And in recent decades, the Court has made it harder and harder for people who sue under Bivens to prevail.
Because fuck the people. More on Bivens in a second, but keep it in the front of your mind.
As is to be expected from the bootlicking fascists on the right wing of this court, the majority used platitudes and general concepts that have little to do with the facts of the case at hand are to justify the taking of an innocent life:
One of the ways in which the Executive protects this country is by attempting to control the movement of people and goods across the border, and that is a daunting task.
On the United States' side, the responsibility for attempting to prevent the illegal entry of dangerous persons and goods rests primarily with the U. S. Customs and Border Protection Agency, and one of its main responsibilities is to "detect, respond to, and interdict terrorists, drug smugglers and traffickers, human smugglers and traffickers, and other persons who may undermine the security of the United States."
Because that's totally the same thing as shooting unarmed children.
The Court also justifies its decision by saying that the laws in question don't apply "abroad," despite the fact that the killer, Officer Mesa, was standing on US soil when he killed the teenage child.
Amazingly, the majority opinion also tries to justify its actions by saying it doesn't want to harm international relations. This, despite the fact that,
As the Mexican Government alerted the Court: "[R]efus[al] to consider [Hernández's] parents' claim on the merits ... is what has the potential to negatively affect international relations."
To be clear, this wasn't even a decision on the merits of the lawsuit. Instead, it was a decision that we shouldn't even get to the merits of the case, because officers should be able to murder people across the border with no consequences whatsoever.
Why?
Because "border security."
The United States has an interest in ensuring that agents assigned the difficult and important task of policing the border are held to standards and judged by procedures that satisfy United States law and do not undermine the agents' effectiveness and morale.
So now it is an appropriate standard and the official policy of the United States that our officers should feel entitled to shoot as many children as they want. Because god forbid they have to worry about ever being held accountable for their actions.
To make things worse, Clarence Thomas penned an even more disturbing concurrence, joined by Neil Gorsuch, saying the court should entirely abandon the Bivens doctrine and just completely disallow suits against federal officers who violate peoples' human, civil, and constitutional rights.
Because what's better than a fascist executive branch operating free from checks, balances, and judicial review?
(Literally anything.)
On the side of the angels, RBG, joined by Justices Breyer, Kagan, and Sotomayor, penned a badass dissent. As usual, RBG fully takes the conservative majority to task for its obfuscation and intransigence. She tears apart the majority's reasoning, especially its reliance on the fact that Hernández just so happened to be on the Mexican side of the border when he was killed.
The only salient difference here: the fortuity that the bullet happened to strike Hernández on the Mexican side of the embankment. But Hernández's location at the precise moment the bullet landed should not matter one whit. [...] For these reasons, as Mesa acknowledged at oral argument, Hernández's parents could have maintained a Bivens action had the bullet hit Hernández while he was running up or down the United States side of the embankment.
She also reminds us that the majority's "border security" justification is bullshit, writing:
The Court also asserts, as cause for hesitation, "the risk of undermining border security." [...] But the Court speaks with generality of the national-security involvement of Border Patrol officers. It does not home in on how a Bivens suit for an unjustified killing would in fact undermine security at the border.
And finally,
Withholding a Bivens suit here threatens to exacerbate bilateral relations[,] and in no way fosters our international commitments[.]
And guess what? This opinion isn't just bullshit because of its legal analysis. It's also bullshit because horrific conduct like that alleged in the complaint has happened far more than just this one time.
Ginsburg's dissent notes that,
Regrettably, the death of Hernández is not an isolated incident.
CBP has a horrible track record of okaying disgusting human rights abuses. In fact,
One report reviewed over 800 complaints of alleged physical, verbal, or sexual abuse lodged against Border Patrol agents between 2009 and 2012; in 97% of the complaints resulting in formal decisions, no action was taken.
And, as RBG points out, the majority's decision means that Sergio Hernández's parents will never see any justice for their dead son. The federal government has already refused to prosecute Mesa for the shooting, the US government refuses to extradite Mesa, and there's no available remedy for the Hernández family in Mexico. As the dissent puts it,
In short, it is all too apparent that to redress injuries like the one suffered here, it is Bivens or nothing.
All this, from the same people who like to refer to themselves as "pro-life." And just a few days after the same five cretins allowed Trump's wealth test for immigrants to go into effect nationwide. They're really on a roll!
This opinion isn't just awful because it leaves a grieving family without even the possibility of ever having their day in court. It also sets a terrible precedent, and will make it harder -- if not impossible -- for people to recover for untold horrors committed by federal officials.
By claiming to stand aside in the name of US foreign policy, the Supreme Court has actually made our foreign policy quite clear: The United States doesn't just hate immigrants; we hate all people who weren't born here.
Here's the full opinion, but unless you're a masochist, the only part worth reading is the dissent. It starts on page 29.
[ SCOTUS ]
