Is The Border Patrol Accountable to Anyone?

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S1: Hey, everyone. Quick note before we start the show, there are some descriptions of gun violence in this episode. Just so you know. OK, here we go.

S2: Mark Joseph Stern covers the Supreme Court for Slate. He’s been thinking a lot about this decision that came down last week. It’s about an incident that happened back in 2010 when this Border Patrol agent, a guy named Hayseeds Mesa, shot and killed a Mexican teenager in the middle of the day.

S3: Maybe we’re all just really cynical about Customs and Border Protection and ICE at this point. But it seems to me like this is a pretty momentous case and the consequences could be absolutely devastating.

S2: This case is called Hernandez versus Mesa. We’ll get to the consequences of it in a second. But the facts, they are pretty devastating to you.

S4: It’s it’s funny. I’ve heard a lot of people talk about this case. And whenever I read about the facts in the case, I think of myself as a teenager, like I think about the stupid stuff I did.

S3: I mean, teenagers play games. Teenagers have underdeveloped brains. Teenagers don’t necessarily have that impulse that adults might have to, like, run and hide from an armed border patrol agent standing yards away from you on the other side of the border. And that’s sort of what happened here, right?

S5: What happened is that 15 year old Sergio Hernandez was hanging out along the border with some of his friends. And when I say the border, don’t picture a remote area or a desert. Picture a bunch of criss crossing highways and bridges, a place with people. Enough people that there’s cell phone video of what happened next. That’s when these kids came into contact with Agent Mesa.

S3: The agent says, oh, they were trying to cross the border illegally and they were throwing rocks. You know, I just had to make the split second decision. And Hernandez, his family says, no, no, no. He and his friends just had this game where they would go and run across that culvert and touch a fence on the border and then and then run back. The video is not super clear, but it certainly doesn’t paint a picture of of like violent teenagers. In fact, the teenagers seem to be pretty frightened in that clip.

S5: You see. Hernandez run away. He hides behind a concrete pillar.

S3: And the agent here, Mesa, for reasons that remain very much in debates, just took out his gun and shot him, shot him twice, once in the face and killed him.

S6: Has there been any accountability for this agent? Do we know?

S7: No. No. So far as we can tell, there’s been no accountability at all.

S2: This case wound up at the Supreme Court because a civil suit was the only option for Sergio Hernandez. His parents, the Department of Justice, refuse to prosecute the federal agent involved. And when the Mexican government charged the agent with murder, the U.S. refused to extradite him. And last week, the Supreme Court decided no. These parents can’t seek damages for their child’s death.

S8: So the only remedy that anybody ever really had was to take them to court and sue for damages. And now I think the Supreme Court has pretty much taken that off the table.

S5: This case seems singular specific, but Mark says it really isn’t. It’s part of a pattern at the Supreme Court.

S9: It shows how a conservative majority is remaking immigration law. One ruling at a time today on the show, Mark, is to explain how. I’m Mary Harris. You’re listening to what next. Stick with us.

S2: The decision in the Maysa case, the case of the boy who was shot by the Border Patrol agent. It rests on this one precedent. People just call it Bivins. I’m hoping we can just explain it a little bit. For people who aren’t familiar with it.

S3: Yeah. Super important case. Bivins versus six unknown federal narcotics agents. I love that name. Basically, this was a case where these six narcotics agents committed these horrible abuses against this suspects, you know, broke into his house. No warrant. Strip searched him.

S10: And Bivins was like, you know what? That was definitely illegal. That was definitely unconstitutional. That was a huge 4th Amendment violation. It seems kind of obvious.

S11: It seems really obvious. But here’s the wrinkle. So there is a federal law that guarantees you the right to sue a state law enforcement officer who violates your constitutional liberties. So you’re in New York. You know, NYPD pulls you over and subjects you to an unlawful strip search. You can sue them in federal courts for damages. But there is actually no federal law that creates the same guarantee for federal law enforcement officers. So if a state police officer abuses your constitutional rights, you can easily sue them under this statute if a federal police officer violates your constitutional rights. It gets a lot trickier. And that’s where Bivins comes into play.

S2: Bivins, this court case, it’s the only thing that establishes the right for anyone to sue a federal law enforcement officer when they behave badly in the case of this teenager killed at the border. His lawyers are saying Bivins establishes a spider man rule. With great power comes great responsibility. But Bivins is just a kind of rule, not a law. So a judge can overturn it. And since the 80s, conservative justices have seemed eager to do just that.

S6: What’s the argument against holding federal employees accountable when something goes wrong?

S10: So the argument is laid out, I think, pretty clearly by Alito, even though I don’t agree with him in his decision in Mesa, which is that, you know, the Constitution has a separation of powers. There is the legislative power that Congress gets to exercise and there’s the judicial power that the courts get to exercise. And what Alito says is when a court is like determining these causes of action and figuring out how much money these victims should get when Congress hasn’t said anything about it, it’s sort of usurping that legislative power. So we want the courts to stay in their lane to only do what Congress has allowed us to do. And when courts are using these Bivins claims to, quote, go beyond what Congress is allowed, they’re really kind of seizing the legislative role for themselves.

S12: There’s also this other argument that I’ve seen made by conservatives against this idea, which is that with great power, not so much comes their responsibility, but comes the necessity to use it. And we can’t take away the power of these federal agents to be able to shoot first and ask questions later.

S11: Yes, that is tragically a persuasive argument at this Supreme Courts that, you know, federal agents need to make split second decisions. They need to be able to act quickly to protect the peace and protect lives. And sometimes they’ll make mistakes and they shouldn’t be overly punished for those mistakes, because that just kind of comes with the territory. This court definitely believes that about all law enforcement officers. So even when victims of police violence in the states come to this court and are seeking some kind of justice for constitutional violations, even where Congress has allowed that, this court will often say, now, we’re not going to let you do that because, you know, we don’t want to tie the hands of law enforcement and make them afraid to use force when they really need to.

S6: So you were there for oral arguments for Mesa. I wonder, looking back now, now that we have the decision, how do you think about how both sides are presenting their cases and how those arguments were being received by the justices?

S7: So I think that it was really clear during oral arguments how this case was going to come down. And that is because there was this massive gulf between the two different sides of the court. How so? So for the liberal justices. Right. And for this family like this is not a difficult case. This is a Fourth Amendment case. This is in constitutional terms, an unreasonable seizure. And that’s what Bivins was. It was another Fourth Amendment case.

S10: And yeah, this case involves a cross-border shooting. But the agent was standing on U.S. soil. He was a U.S. agent. You know, he was vested with the power of the U.S. federal government. And what the Liberals were really asking was, why do all of these distinctions that it was at the border, you know, that he was an immigration officer. Why aren’t those just kind of superficial? Why? Why? When we dig down. Shouldn’t this be a straightforward example of a law enforcement officer going way overboard? That we for decades have said this belongs in federal court and the victims deserve to have their day in federal court. That’s what the liberals were saying.

S6: And you could hear it like the liberals when I listened to oral argument. You could hear Justice Breyer getting kind of aggressive with the lawyer who is there defending the U.S. government, saying, what is the problem here?

S13: That’s my standard. I’ve given you the facts. What’s the problem? We would like we ordinarily have such actions. The Mexicans want it. They want the action. So what’s the special problem?

S6: Like we agreed that we have these rules in the United States. What’s the problem? I felt like he was about to challenge him to a fight.

S10: Right. And prior you know, prior is so rule oriented.

S3: I think that he would be very happy if he were on the head of some commission that like regulated wine in California. He loves like the my new details of regulations and the law.

S14: And here he he seemed so frustrated, almost exasperated, because he said this is not a hard case. This is an easy case. You are trying to add layers to this case that just don’t exist. This is a clear cut case of police brutality. This is why we have Bivins. You are throwing all this extra stuff at us that we do not need.

S6: And then Justice Sotomayor was also a major character in these oral arguments. She she didn’t have the same energy as Breyer. She was really calm. It felt like the kind of calm where you’re like holding some anger back to me as a listener. But she was just calmly asking, why is it a problem that we would hold this agent accountable?

S7: Right. And she asked it in this very pointed way because she cited this amicus brief that was filed in this case by former high level officials at Customs and Border Protection who sort of sent up a flare for the court.

S11: And they said, look, we used to work at CBP, like we know CBP inside out. And this agency has a huge problem. This agency is violent. It is lawless. It is unaccountable. There is no discipline here. And if you don’t let victims of CBP officers sue them in federal court, there will be no justice for the victims because the U.S. government is never going to punish these officers.

S7: And Sotomayor cited that and talked about how the agency has these high rates of corruption and misconduct. And so it Sotomayor said she said to the lawyer who is representing the government. You know, these officials tell me pretty persuasively and extensively that the Border Patrol might be a bit of a mess and that disciplining is at a minimum here.

S15: All of those things suggest to me that the clash you want to create is a class of Border Patrol agents, whether they shoot across the border or shoot the ball.

S7: Justice Sotomayor and that basically, you know, we’re the only ones, the adults in the room who will step in and hold these people accountable. Nobody else is going to do it.

S4: Yeah. I mean, when you wrote about the arguments, I think you really put your finger on it when you said that Sotomayor was basically saying the play here is to make this agency accountable to no one.

S11: Absolutely. Absolutely no one. There cannot even be a grieving parent of a victim coming into court and asking for, you know, modest damages. The agents are free to do whatever they want, anytime they want. And no one’s going to punish them.

S2: When Mark says there was a massive gulf between the liberal and conservative justices during oral arguments. You can see it in the final decision the majority handed down for the conservatives. Bivins now seems very far from sacred.

S7: You know, Justice Thomas and Justice Gorsuch have now come out and said that they simply want to overrule Bivins. Roberts, Kavanaugh and Alito have not admitted that yet. But reading between the lines of this decision in Hernandez v. Mesa, I get the sense that what they’re saying is like, do not push us on this. Like, we will let you have your Bivins claims in those rare cases that follow this one specific fact pattern. But if you try again to expand this any any way beyond that, then we’re going to overturn this whole line of precedent because we’ve never liked it and we don’t think it’s legit.

S4: It’s interesting because in common parlance, I think that would be the conservative justices like really feel in themselves. And so you’ve talked before on the show about looking at this particular Supreme Court year as a way to see how the justices are changing the way they speak to each other during the first couple of years of the Trump administration. The justices really kind of kept it buttoned up and lots of respect for both sides. And, you know, we’re just here to call balls and strikes and do our jobs. And I wonder in this opinion whether you see a bit of movement there.

S7: I don’t know if this opinion is the best example of that, but I do absolutely see. I see the conservatives asserting themselves more and more with almost with each passing month. And this was a great example of the conservatives really kind of planting a flag and saying there’s this line of precedent that we don’t like and we are kind of laying the groundwork to kill it off in the near future. And the liberal justices railing against that and warning about what’s coming. But they have so little power when they’re in the minority. There’s simply not much they can do. And so I do get a sense of frustration from the liberals.

S16: When it comes to this liberal frustration, immigration has become a flashpoint. The same week the decision about this Border Patrol agent was released. Another ruling came down. The conservative majority decided to allow the Trump administration to begin turning away immigrants who might need public benefits under their so-called public charge rule. Advocates have argued this rule is actually a wealth test for some of the neediest people.

S10: Justice Sotomayor had sort of reached her limits, and when the Supreme Court yet again in a 5 to 4 vote, let this wealth test take effect in the last state where it wasn’t already taking effect, she said. You guys, my colleagues, the five Supreme Court justices basically appointed by Republicans, you have a bias toward the Trump administration. Every single time the Trump administration comes to this court demanding something, you give it to them and you are breaking all the rules and encouraging this kind of behavior. And it has to stop or people are going to lose faith in this court.

S6: But do you think the conservatives down the hall are going to listen to them?

S11: Well, so this is always the big question, right? Is Chief Justice Roberts going to take this seriously? And I think it’s a big gamble on Sotomayor’s parts. I think you could really flip a coin. There’s a 50 percent chance that Roberts read Sotomayor’s descendant said, screw this. I am not playing ball with this. You’re trying to extort me.

S10: I also think there’s a 50 percent chance that Chief Justice Roberts read that dissent and said, yeah, this is this is not entirely wrong.

S11: And maybe as the center of this court, I should consider at least handing a few more small wins to the other side or tapping the brakes on the Trump administration just a little bit more, because he does on some level care a lot about the institution of the courts. But, you know, I don’t think any of the other conservatives thinking about Alito, Gorsuch, Thomas, even Kavanaugh. I don’t think they care. They feel like, hey, we’ve got the votes. We can do whatever we want and we’re not going to let Sonia stop us.

S4: If we look at the immigration decisions that have come down to the Supreme Court over the last couple of weeks as like a beta test for how these decisions will move forward in the future, what does it tell us about how this is going to work over the next year?

S11: Well, it suggests to us that Trump, after impeachment, you know, this sort of unleashed unrestrained Trump is going to have a whole lot more victories at the Supreme Court. You know, there’s there’s all of this reporting suggesting that his advisors and his his cabinet secretaries and their lawyers, they are in even worrying about legal challenges anymore. They know that these challenges are going to come and they now have a total faith in the Supreme Court. They think SCOTUS is going to uphold us no matter what. And so I think there’s going to be even more smashing grab on the part of the Trump administration. And this is something Sotomayor warned about in her dissent. There’s going to be more of a mad dash.

S10: Just do whatever the Trump administration can, especially in the realm of immigration. And I think that all of the people who are who are behind these initiatives, they’re like, we are five votes in SCOTUS, man. It’s all gravy, baby. Like, this is not something we need to worry about because we’ve got that fifth vote locked up. Justice Kavanaugh is there doing his job. And I think it’s gonna be a pretty frightening run because, you know, if Trump does win in November and he shores up that majority, then he will have sort of captured a another branch of government.

S11: And there’s nobody who’s going to step up to him and say, you’ve gone too far.

S4: Marchesa, a stern, thank you so much for joining me. Thanks so much for having me on. Mark Joseph Stern writes about the Supreme Court for Slate. What next? Is produced every week by Maurice Silver as Daniel Hewitt, Mary Wilson and Jason De Leon. I’m Mary Harris. You couldn’t catch me on Twitter at Mary’s desk. And you can find them back here tomorrow. CNN.