Hilliard, representing the teenager's family, argued the case before the United States Supreme Court on February 21, 2017, contending that the protections of the Constitution's Fourth Amendment may apply to noncitizens like Hernandez who, while standing in their own country, are the victims of excessive force by a USA border patrol agent standing in the U.S.
In Monday's ruling, the justices also resurrected the claim that Hernandez's Fifth Amendment rights were violated because he was deprived of life or liberty without "due process of law".
The Supreme Court did not answer this question today, instead opting to send a case back to a lower court.
Lawyers for Sergio's parents, Jesus and Maria Guereca, say the family deserves justice for the death of an unarmed teenager killed while playing with friends.
The Supreme Court heard arguments in the case on February 21 when it still had a vacancy and was divided with four conservative justices and four liberals.
In an unsigned order, the justices directed the 5th Circuit Court of Appeals to take another look at its decision in a similar case where a Border Patrol agent in Texas shot and killed a teen who was in a culvert on the Mexican side of the border.
"When they draw their weapons and aim across our border, they now know that this is not a free killing zone, where lawlessness is unchecked, and shootings are not investigated", the statement continued.
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According to the majority decision, "a panel of the Court of Appeals for the Fifth Circuit affirmed in part and reversed in part".
But in the 2008 case Boumediene v.
The Supreme Court had ruled in United States v. Verdugo-Urquidez in 1990 that the Constitution affords no protection against unreasonable searches and seizures to noncitizens by government agents beyond the US border. Bush, the court ruled that Guantanamo Bay, Cuba, detainees could challenge their detentions in US court.
"It is undisputed, however, that Herandez's nationality and the extent of his ties to the United States were unknown to Mesa at the time of the shooting", the high court wrote.
Mexico and London-based Amnesty International, among others, have filed amicus briefs in support of the family.
Case of teen shot on Mexican side of border... Because the court resolved the case on constitutional grounds, it did not decide whether Hernandez's family could sue for a tort violation using a so-called Bivens remedy, named for the case that found an implied right of action to sue federal officials who violate the constitutional ban on unreasonable searches and seizures.
A Court of Appeals had ruled that the border patrol agent, Mesa, had qualified immunity, which means he can not be sued. The lower court's rationale stressed that Hernandez was not a USA citizen, which the justices say that Mesa did not know that when he shot him.