iStock/Thinkstock(WASHINGTON) — The controversial shooting death of a 15-year-old by a Border Patrol agent across the U.S.-Mexico border nearly seven years ago has made its way to the Supreme Court.
On Tuesday, the court is set to hear arguments in Hernández v. Mesa, which will determine whether the family of a non-American who was killed on the Mexican side of the United States border can sue over their son’s death in U.S. federal court.
Sergio Hernández Guereca, an unarmed Mexican national, was shot and killed in the summer of 2010 by U.S. Border Patrol Agent Jesus Mesa, who was patrolling the border by bicycle.
The case reaches the Supreme Court at a time when immigration enforcement and border security have been thrust into the national spotlight by the Trump administration.
One of President Trump’s executive orders, issued on Jan. 25, called for the “immediate construction” of a physical wall on the southern border, as well as the hiring of an additional 5,000 Border Patrol agents.
How we got here
In 2010, Mesa, while standing on the U.S. side of the border, pointed his service weapon at Hernández, who was on the Mexican side of the border, and struck the teen. Hernández died at the scene of the shooting.
Beyond that, there is little agreement about what happened between the two sides. The facts of the case have never been argued in court, so for the purposes of the Supreme Court hearing, both parties will rely on the account of the facts brought by the petitioners — the Hernández family.
Hernández was playing a game with friends on the border between El Paso, Texas and Juarez, Mexico in which they would run up and touch the U.S. fence and then run back down, according to court documents.
After Mesa arrived on the U.S. side, he caught one of the boys and the other two ran behind a pillar on the Mexican side of the border. Mesa, who remained on U.S. soil, then shot Hernández as he peered out from pillar.
U.S. authorities initially claimed that Hernández was throwing rocks and Mesa had shot him in self-defense. But cellphone video later revealed that Hernández was shot as he peered his head out, according to the petitioner’s brief.
Hernández’s parents sued Mesa in federal court, but the district court dismissed the claim. The case then moved up to the Fifth Circuit of Appeals, which also sided with Mesa.
The Hernández family then appealed to the Supreme Court, which agreed to take the case in October of last year.
“We just want to prove our case in court,” said Robert Hilliard, lead attorney representing the Hernández family.
Hernández’s “parents want justice,” he said.
The Department of Justice concluded that there was insufficient evidence to prosecute Mesa under a federal homicide charge and that prosecutors lacked jurisdiction under civil rights statutes because Hernández was “neither within the borders of the United States nor present on U.S. property” at the time of the shooting, according to a DOJ announcement in 2012 when the investigation was concluded.
Mesa was charged by Mexican authorities, but was never extradited to face those charges.
“We are very confident” that the Supreme Court will find that the opinion of the Fifth Circuit is in line with the case law,” said Randolph Ortega, Mesa’s attorney.
Mesa, who is still with the Border Patrol, had to uproot his family and re-locate from the El Paso area because of death threats, said Ortega.
“It’s been extremely difficult,” he said.
Customs and Border Protection (CBP), which oversees Border Patrol, declined to comment on pending litigation.
The issue before the Supreme Court
The case brings into question the constitutional rights of non-citizens, which could potentially impact other legislation and expand the scope of U.S law.
“The Fourth Amendment protects non-citizens against the arbitrary use of deadly force at the border, at least in the context of a close range, cross border shooting in a confined area patrolled by federal agents,” argue attorneys in a brief for the petitioners.
The court is being asked to decide whether Fourth Amendment protections against unreasonable search and seizure should apply when someone is not on U.S. soil, which Hernández was not.
Attorneys for Hernández argue that protections under the Constitution should apply.
He “was an unarmed civilian and a “member of an intertwined, binational community,” said the brief.
But the U.S. government, which is supporting Mesa, said in its brief that U.S. legal protections should not be expanded to non-citizens in this case. “An injury inflicted by the United States on a foreign citizen in another country’s sovereign territory is, by definition, an incident with international implications,” the brief said.
The Supreme Court will also weigh whether Mesa is entitled to “qualified immunity” — whether an officer is immune from liability for a violation of constitutional rights.
And the justices will also determine whether Hernández’s parents have standing to bring forth the claim in the first place.
While this case is about one incident, Hernández’s parents argue that this is a recurring problem for foreign victims who wish to make claims against the Border Patrol.
In a recent five-year span, border agents shot across the border at least 10 times, killing a total of six Mexicans on Mexican soil, according to court documents.
“There is no constitutional constraint when U.S law enforcement stands in the U.S and shoots people. There is no law that governs their conduct,” said Hilliard.
After the agency was criticized for transparency and enforcement abuse, former CBP Commissioner Gil Kerlikowske worked to change the culture of the agency, ordering limits on when agents can use their weapons and called for more accountability when civilians are shot.
Kevin McAleenan has been serving as acting commissioner since Jan. 20, 2017.
Violent encounters between CBP officers with both immigrants and American citizens reached a four-year low in 2015, dropping 40 percent from two years earlier.
But those number began to rise again in 2016, with 978 violent encounters recorded in fiscal year 2016, as well as a five-year high of assaults against CBP law enforcement officers.
CBP did not immediately respond to a request for comment on the use-of-force incidents.
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