US solicitor general weighs in on cross-border shooting case

Solicitor General Noel Francisco urged the justices in a court brief that "imposing a damages remedy on aliens injured abroad by U.S. government officials would implicate foreign-policy considerations that are committed to the political branches" and would inject the courts into sensitive matters of international diplomacy that would "risk undermining the government's ability to speak with one voice in international affairs. "

Francisco urged the justices to take up the late Sergio Hernandez's case next term and affirm a lower court opinion that blocked the family's lawsuit from going forward. Francisco said the Supreme Court should hear the case because lower courts have split on the issue. The decision by the appeals court in the Hernandez case, for example, conflicts with a ruling in the case of another cross-border shooting, which occurred along the Arizona-Mexico border in 2012.

The filing comes as the Trump administration has ousted Homeland Security Secretary Kirstjen Nielsen and is considering more measures to reduce migration, including threats by President Donald Trump to close the southern border.

In 2010, Hernandez, age 15, was with friends on a cement culvert that separates El Paso, Texas, from Ciudad Juarez, Mexico. The international border runs down the middle of the culvert.

Hernandez's parents say their son and the others were playing a game: crossing the border, touching a fence and then running back to Mexico soil. They accused Jesus Mesa Jr., the US Border Patrol agent, of arriving on the scene and fatally shooting their son.

According to the government, Mesa resorted to force only after Hernandez refused to follow commands to stop throwing rocks.

The Department of Justice declined to bring a criminal charge against Mesa in 2012.