Court rules for Italian dad in custody case
By Jessica Gresko
Associated Press
WASHINGTON (AP) - The Supreme Court is resolving an international child custody dispute in favor of the girl's Italian father over her American mother.
The mother, Michelle Monasky, fled with her daughter from Italy to Ohio when the girl was two months old. Monasky said her husband had become abusive, so she left with her daughter and moved in with her parents in the United States. The Supreme Court agreed unanimously Tuesday that lower courts were correct in ordering that the now 5-year-old girl be returned to Italy.
The child's father, Domenico Taglieri, had petitioned courts in the United States for the girl's return and won. The child, who is referred to as A.M.T. in court documents, was actually returned to Italy when she was nearly 2 years old and put in her father's care. An appeal of the case continued in the United States, however, and custody proceedings are still ongoing in Italy.
An international treaty says that a child wrongfully removed from her country of "habitual residence" should usually be returned to that country. Monasky had argued to the Supreme Court that Italy was not the infant's habitual residence because she and Taglieri had not agreed to raise the girl there.
But Justice Ruth Bader Ginsburg wrote in an opinion that no agreement was necessary for Italy to be the girl's habitual residence. And the Supreme Court upheld a lower court ruling that found that the girl was born into "a marital home in Italy" and her parents had "no definitive plan to return to the United States." The couple initially lived together in Milan before Taglieri moved to Lugo for a job.
An attorney for Taglieri, Andrew Pincus, said Tuesday that they were gratified by the ruling. An attorney for Monasky did not immediately return an email and phone message requesting comment.
The Supreme Court said in resolving the dispute that determining a child's "habitual residence" will depend on the specific circumstances of each case.
"Common sense suggests that some cases will be straightforward: Where a child has lived in one place with her family indefinitely, that place is likely to be her habitual residence," Ginsburg wrote. "But suppose, for instance, that an infant lived in a country only because a caregiving parent had been coerced into remaining there. Those circumstances should figure in the calculus."
The case is Monasky v. Taglieri, 18-935.
Justices close courthouse door on slain Mexican teen's family
By Mark Sherman
Associated Press
WASHINGTON (AP) - The Supreme Court ruled 5-4 Tuesday to close the courthouse door on the parents of a Mexican teenager who was shot dead over the border by an American agent.
The court's five conservative justices held that the parents could not use American courts to sue Border Patrol Agent Jesus Mesa Jr., who killed their unarmed 15-year-old son in 2010. Mesa was on U.S. soil in Texas when he fired the fatal shot.
Justice Samuel Alito wrote for the court that the case is tragic, but that strong border security and international relations issues led to the ruling against the parents of Sergio Adrian Hernandez Guereca.
"Since regulating the conduct of agents at the border unquestionably has national security implications, the risk of undermining border security provides reasons to hesitate" about allowing the parents to sue in American courts, Alito wrote.
Justice Ruth Bader Ginsburg, writing for her liberal colleagues, disagreed, saying the parents' lawsuit does not endanger border security or U.S. foreign policy.
Mexico's Foreign Relations Department said in a statement Tuesday it "regretted" the Supreme Court ruling.
Tuesday's outcome also is certain to doom a lawsuit filed by the parents of a teenager killed in Nogales, Mexico, from gunshots fired across the border by a U.S. agent who was standing in Arizona. That case has been on hold.
The case tested a half-century-old Supreme Court decision that allows people to sue federal officials for constitutional violations. Over the years, the courts have made it harder to bring claims, known as Bivens actions after the name of the high court case.
Ginsburg wrote that "it is all too apparent that to redress injuries like the one suffered here, it is Bivens or nothing. I resist the conclusion that 'nothing' is the answer required in this case."
Justice Clarence Thomas, who was part of the court majority, said he would get rid of Bivens lawsuits altogether. Justice Neil Gorsuch joined Thomas' separate opinion.
Alito noted that the Justice Department and the parents disagreed about the sequence of events that led to Sergio's death. But there is no question that Mesa was standing on the U.S. side of the border when he fired into Mexico and killed him with a gunshot wound to the face.
The family said Sergio was playing a game with friends on a June evening, running through a culvert and over the border, touching it, and running back. Mesa rode up on a bicycle, took Sergio's friend into custody, then fired across the border.
The Justice Department said Mesa was trying to stop "smugglers attempting an illegal border crossing" and fired his gun after he came under a barrage of rocks. Mesa said in court filings that Sergio was among the rock throwers. Video footage of the incident seems to dispute that.
U.S. officials chose not to prosecute Mesa, and the Obama administration refused a request to extradite him so that he could face criminal charges in Mexico. When the parents of the boy tried to sue Mesa, federal judges dismissed their claims.
The Border Patrol drastically changed its use of force policies in the years after the shooting, following several complaints of excessive force. There were 15 instances where officers and agents used firearms during the budget year 2018, down from a high of 55 reported during the 2012 budget year.
But Lee Gelernt, the American Civil Liberties Union lawyer who argued on the parents' behalf, said, "The gravity of this ruling could not be clearer given the Trump administration's militarized rhetoric and policies targeting people at the border. Border agents should not have immunity to fatally shoot Mexican teenagers on the other side of the border fence. The Constitution does not stop at the border."
The statement from the Mexican government expressed "profound concern about the effects this decision will have on other similar cases in which Mexican citizens have been killed by shots fired by U.S. agents toward the Mexican side. With this precedent, these cases will now face barriers to seeking justice and reparations" in U.S. courts.
"Mexico has energetically condemned situations in which law enforcement authorities use excessive force and, in some cases, extra-territorial force, especially along our common border," Mexico's Foreign Relations Department said.
Death sentences of Arizona man upheld
WASHINGTON (AP) - A sharply divided U.S. Supreme Court on Tuesday upheld the death sentences for an Arizona inmate who was convicted of killing two people in home burglaries nearly 30 years ago and now wants a jury to consider abuse he suffered as a child.
Justice Brett Kavanaugh, writing for the court's conservative justices, rejected the arguments of James Erin McKinney that he deserved a new sentencing hearing so a jury could decide whether he should face death or life in prison. He was first sentenced to death by a judge.
McKinney also argued that courts have not fully considered the horrific physical abuse he suffered as a child.
The court's four liberal justices dissented. Justice Ruth Bader Ginsburg wrote that she "would hold McKinney's death sentences unconstitutional."
The high court ruled in 2002 that juries, not judges, must impose death sentences. The court has also ruled that mitigating factors, including childhood deprivations, must be factored into sentencing decisions.
The justices had to decide whether McKinney should be able to take advantage of the ruling, even though the court has said it does not typically apply to older cases. They also had to determine whether the issue of McKinney's past must be handled in a trial court or could be dealt with by the Arizona Supreme Court, which upheld his sentence in 2018 after it said it gave some weight to his childhood deprivations.
McKinney's attorneys say the state Supreme Court erred in upholding his sentences, arguing their client had a horrific childhood in which he was physically abused, frequently deprived of food and water and locked outside the home with little clothing.
Prosecutors said McKinney shouldn't get a sentencing retrial, arguing his case was considered officially closed years before the 2002 U.S. Supreme Court decision that required death penalty decisions to be made by juries, not judges.
Prosecutors also said McKinney's evidence of post-traumatic stress was considered by Arizona courts and that the review of his sentences didn't lead to his cases being reopened.
Kavanaugh said McKinney was not entitled to re-sentencing by a jury and that the Arizona high court review was sufficient.
Sharmila Roy, one of McKinney's attorneys, said she suspected from the questions posed by the justices that it would be a 5-4 decision against her client. "I had hoped Chief Justice (John) Roberts would have weighed in on our side," Roy said.
Roy said other inmates sentenced to death by judges will have to ask the Arizona Supreme Court to conduct an independent review of lower-court findings on aggravating and mitigating factors, rather than seek a sentencing retrial.
McKinney's half brother, Charles Michael Hedlund, also was convicted of murder in the deaths of Christine Mertens and Jim McClain during a series of burglaries in the Phoenix area. Hedlund also has asked the U.S. Supreme Court to review his death sentence on similar grounds.
If McKinney had won the appeal, it could have affected as many as 15 of Arizona's 117 death row inmates.
"We have an obligation to the victims, their families and our communities to uphold the rule of law and to see that death sentences of convicted murderers are carried out," said state Attorney General Mark Brnovich.
Published: Thu, Feb 27, 2020
