Family of Slain Mexican Teen Can’t Sue Agent

NEW ORLEANS (CN) - A federal agent who shot and killed a Mexican teenager still on the other side of the border need not face civil claims, the en banc 5th Circuit ruled.

An attorney for the family of Sergio Hernandez Guereca said they have not made a decision on whether to appeal to the U.S. Supreme Court.

"We leave for others to decide whether this court has lost its moral bearings," Texas attorney Marion Reilly said in a statement. "On behalf of the parents of an innocent slain teenager - a human being, regardless of his nationality - we simply note that they and we had not expected such a decision from a court of the United States.

"After recovering from this judicial insult to their slain son, the family will decide whether to seek further review in the Supreme Court of the United States."

Hernandez's family had filed their wrongful-death complaint against the U.S. government, Border Patrol Agent Jesus Mesa Jr., and his supervisors in 2011.

The family claimed that Hernandez was playing a game with friends on an inclined culvert separating Mexico from the United States when Mesa fired two deadly shots across the Rio Grande from Texas into Mexico.

A federal judge in El Paso dismissed the claims against the federal government under the doctrine of sovereign immunity, found that the claims against Mesa's supervisors failed to establish personal responsibility for the alleged violations, and tossed the claims against Mesa as barred by qualified immunity.

Hernandez's family caught a break last year, however, when a divided three-judge panel the 5th Circuit decided to revive the claims against Mesa.

That decision emphasized that Hernandez had Fifth Amendment rights even though he was in Mexico at the time of his shooting, but the federal appeals court vacated the opinion in deciding to rehear the case en banc.

The full court was unanimous Friday in finding that the Fifth Amendment violation "was not clearly established to the extent the law requires," and any Fourth Amendment excessive force claims cannot be asserted because the teen had no "significant voluntary connection" to the United States.

The unsigned lead opinion notes that last year's ruling was accurate in saying that Mesa "showed callous disregard for Hernandez's Fifth Amendment rights by using excessive, deadly force when Hernandez was unarmed and presented no threat."

Such rights however were "not clearly established, under these facts, in 2010," the judges wrote.

"The question here is whether the general prohibition of excessive force applies where the person injured by a U.S. official standing on U.S. soil is an alien who had no significant voluntary connection to, and was not in, the United States when the incident occurred," the opinion says.

"We hold unanimously that Agent Mesa has qualified immunity from this suit for a Fifth Amendment substantive due process violation because he did not violate any clearly established rights flowing from that Amendment."

Several of the judges, including the author of last year's partial reversal, issued separate concurring opinions.

"The facts in this case - though novel - are recurring, and similar lawsuits have begun percolating in the federal courts along the border," Judge Edward Prado wrote. "Ultimately, it will be up to the Supreme Court to decide whether its broad statements in Boumediene apply to our border with Mexico and to provide clarity to law enforcement, civilians, and the federal courts tasked with interpreting the court's seminal opinions on the extraterritorial reach of constitutional rights. Because the law is currently unclear, I join the en banc court's opinion in full."

A 2008 decision, Boumediene v. Bush "addressed whether the suspension clause of the U.S. Constitution supported a challenge by alien detainees at the U.S. Naval Base in Guantanamo Bay, Cuba, to their captivity outside the United States.

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