Arlington, Va.—On November 12, the U.S. Supreme Court will decide whether federal officials can be brought before a federal court to answer for violating another person’s constitutional rights. There is no question state and local government officials can; the question is whether the same rule should apply to federal officers.

The case, Hernandez v. Mesa, arose in 2010 on the border between El Paso, Texas, and Juarez, Mexico, where a U.S. Customs and Border Protection Agency officer, Jesus Mesa Jr., shot and killed a 15-year-old boy, Sergio Hernandez, on the Mexican side of the border. Sergio and his friends were playing in a dried-out culvert of the Rio Grande river. The officer broke up the gathering by detaining one of the boys. Sergio ran, made it to the Mexican side of the border and stood there, unarmed and unthreatening. The officer shot at Sergio twice, killing him.

In 2012, federal prosecutors in the Obama Administration’s Department of Justice declined to bring a case against the officer. In addition, a federal statute prevents Sergio’s parents from bringing claims against federal agents in a state court. Thus, the only way for Sergio’s parents to vindicate their son’s constitutional rights is by filing a case in a federal court. Yet a federal court of appeals held that there is no remedy available for the violation of Sergio’s constitutional rights, breaking with America’s proud judicial tradition—embraced at the founding—that where there is a right, there is a remedy.

The Institute for Justice filed an amicus brief urging the U.S. Supreme Court to allow parents of the dead teenager to sue in federal court the federal officer who killed him.

“Had Sergio Hernandez been killed by a federal agent in the nineteenth century, his parents could have brought a damages claim for the deprivation of their son’s constitutional rights,” said Anya Bidwell, an IJ attorney who co-authored the amicus brief. “The Supreme Court’s current jurisprudence that essentially eliminates the ability of individuals to sue federal agents for constitutional rights is simply inconsistent with this proud history.”

The 5^th U.S. Circuit Court of Appeals held that Sergio’s parents could not sue the officer because there is not a statute that specifically authorizes them to do so. But IJ’s Bidwell counters, “During the first 200 years of the Republic, you could vindicate your constitutional rights by suing for damages in state and federal courts.”

“Waiting for Congress to create an analogue to the statute that authorizes state officers to be sued in federal court is an abdication of judicial duties,” said Darpana Sheth, an Institute for Justice senior attorney and co-author of the amicus brief. “It is simply a convenient excuse for the judiciary to avoid saying what the constitutional law is, including the means by which this law must be enforced,” Sheth added.

“The federal courts have ignored centuries of common law by claiming there is no remedy in federal court to vindicate Sergio’s constitutional rights,” said Scott Bullock, IJ’s President and General Counsel. “But a right without a remedy is simply not a right. Because the Constitution is not an empty promise, it is time for the Hernandez family to have its day in court.”