The Trump Administration’s plans to increase policing at the U.S.-Mexico border significantly raise the stakes of the Supreme Court’s pending decision in Hernández v. Mesa.  In Hernández, a Customs and Border Patrol agent standing in El Paso, Texas, shot and killed a 15-year old Mexican national who, at the time, was hiding under a bridge just across the border in Juarez, Mexico.  The agent and the victim (Sergio Hernández) were standing in a fenced-off culvert that includes parts of both Mexico and Texas. 

Hernández raises the question of whether the Constitution applies to a border patrol officer, standing in the U.S., who shoots and kills an unarmed Mexican national standing in Mexico.  The case raises the additional question of whether the teenage victim’s family can sue the officer in U.S. federal court.

The number of border-related shootings before the Trump Administration took office was already high—there were five in 2008, 12 in 2009, and 17 in just the first half of 2010.  The CBP estimates that hundreds of incidents involving firearms took place between 2010 and 2016, and a separate investigation by the largest newspaper in Arizona concluded that at least 45 people, including 13 Americans, have died due to use of force by CBP officers.

A brief filed on behalf of former CBP officials provides some explanations for why CBP agents use excessive force at the border—there is inadequate training; inadequate screening of prospective agents; and an increasing “militarization” of the CBP, fostering a culture that causes CBP agents to view themselves as part of a fighting force. Additionally, none of the agents involved in the shootings examined in the investigation appeared to face any employment consequences.  The former CBP officers’ brief suggests this lack of consequences was because of inefficiencies in investigation procedures and a culture of protectionism among federal officials.

In this light, many of President Trump’s recent actions, which purport to increase federal agents’ presence at the border, raise additional concerns.  Trump signed a January 25th Executive Order on “Border Security and Immigration Enforcement Improvements,” and a month later Department of Homeland Security Secretary John Kelly issued a memo implementing that Order. Secretary Kelly’s memo details the administration’s plans to increase “security” at the southern border by, inter alia, planning and implementing operations to disrupt criminal organizations—particularly those involved in human smuggling.  The order also directs the CBP immediately to start planning the construction and maintenance of a wall at the U.S.-Mexico border.  As part of the “wall” operation, the memo asks the CBP to take actions that will “effectively achieve operational control of the border.”  Lastly, the memo directs the CBP to “immediately begin the process of hiring 5000 additional Border Patrol agents.”

There are early reports that the Trump administration is trying to loosen hiring requirements to meet this quota.  Foreign Policy obtained internal memos suggesting that DHS hopes to forego requirements that prospective CBP agents take entrance exams, pass background checks, and sit through a polygraph.  If that’s true, then the number of border shootings may only increase.  Even if DHS does not ultimately loosen hiring requirements on CBP agents, the number of border-related shootings may still increase as the Trump Administration continues to extol the military and public safety necessity of border enforcements, directing the CBP to take “control” of the border.  

Hernández will be decided before the end of this term.  But the decision will have dramatic repercussions over the next several years—especially so long as any administration openly signals to the CBP that the agency’s mission is to do whatever it takes to police the border.

Disclosure:  Leah Litman is among the counsel to the Hernández family in the Supreme Court.

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