Border Patrolman Has to Answer for Killing

NEW ORLEANS (CN) - A Mexican teenager who was shot in the face and killed by a U.S. Border Patrol agent had Fifth Amendment rights though he was in Mexico at the time, the 5th Circuit ruled on Monday.

The parents of Sergio Adrian Hernandez Guereca sued the federal government, Border Patrol Agent Jesus Mesa Jr., and his supervisors for wrongful death in 2011. In the original complaint in El Paso Federal Court, the family claimed that Hernandez Guereca was playing a game with friends on a cement culvert separating the two countries when an agent emerged on a bicycle and dragged one of his friends along the concrete.

"Sergio retreated and stood still beneath the pillars of the Paso del Norte Bridge, observing the agent," the complaint stated. "The U.S. border agent then stopped, pointed his weapon across the border, seemingly taking careful aim, and squeezed the trigger at least twice, fatally wounding Sergio with at least one gunshot wound to the face. Sergio, who had been standing safely and legally on his native soil of Mexico, unarmed and unthreatening, lay dead on his back in his blue jeans and sneakers. He was fifteen years old."

Mexican police declared Hernandez Guereca dead after the shooter and other Border Patrol agents left him to die, the complaint states. Hernandez Guereca's parents claimed an FBI spokesman then issued "a false and reprehensible cover-up statement " that accused their son of throwing rocks at the agent.

The trial court dismissed claims against the federal government due to sovereign immunity. Claims against the supervisors were dismissed because of failure to establish they were personally responsible for the alleged violations. Claims against Mesa were dismissed due to qualified immunity.

On Monday, a three-judge panel with the 5th Circuit Court of Appeals affirmed the dismissal of claims against the United States and Mesa's supervisors, but reversed dismissal of claims against Mesa, reinstating the lawsuit.

Writing for the court, Judge Edward C. Prado disagreed with Mesa's argument that aliens beyond the territorial jurisdiction of American courts have no Fifth Amendment rights that protect against arbitrary conduct that shocks the conscience.

"Based on the nature of the border area where the shooting occurred, we cannot say that the United States exercises no control," the 47-page opinion states. "Unlike both Guantanamo and Landsberg Prison [in Germany after World War II], this is not a case requiring constitutional application in a faraway location. Agent Mesa was standing inside the United States, an area very much within U.S. control, when he committed the act. Border Patrol agents exercise their official duties within feet of where the alleged constitutional violation occurred. In fact, agents act on or occasionally even across the border they protect."

Citing reports of other Border Patrol agents killing people across the border, Prado said the agents have "hard power" in injuring others in Mexico.

"In sum, even though the United States has no formal control or de facto sovereignty over the Mexican side of the border, the heavy presence and regular activity of federal agents across a permanent border without any shared accountability weigh in favor of recognizing some constitutional reach," the opinion states.

Prado says a strict territory-based application of such rights would "create zones of lawlessness" that would "establish a perverse rule" that would treat two people differently merely because one crossed into the United States.

In a 2-page concurring opinion, Judge James L. Dennis agrees with the court's refusal to recognize Hernandez Guereca's Fourth Amendment excessive force claims, but does so "out of concern for pragmatic and political questions" rather than the formal classification of the parties. The Mexican government has indicated it would have no issue with the court ruling for either of Hernandez Guereca's Fourth or Fifth Amendment claims, Dennis writes.

The parents' attorney, Bob Hilliard with Hilliard Munoz in Corpus Christi, hailed the reversal as a "resounding victory for the rule of law and for common human decency."

"No family should have to suffer as Sergio's has, with no ability to have a court of law review the legitimacy of what appears from several video tapes to be an entirely unjustified killing of their teenage son," Hilliard said Monday evening. "This decision gives every non-U.S. citizen the comfort of knowing they will not be subject to being murdered in cold blood while standing in their home country."

Border Patrol officials did not immediately respond to a request for comment Monday evening.

Border Patrol agents have killed at least six Mexican nationals on the Mexico side of the border since 2010, according to Adriana Pinon, staff attorney for the ACLU of Texas.

Pinon said the Border Patrol has taken no steps to hold the agents accountable.

"The 5th Circuit clearly signaled that Border Patrol cannot operate with impunity," Pinon said in a statement Monday evening.

Follow @davejourno

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