Is it Legal for Border Patrol Agents to Shoot and Kill Unarmed Mexican Kids — So Long as They Fire Across the Border?

The family of 15-year-old Sergio Hernandez says he was simply fooling around with friends near the Paso del Norte Bridge, which stretches into downtown El Paso, when U.S. Border Patrol Agent Jesus Mesa pulled up and spotted the boys on June 7, 2010. The boys had been daring each other to run up to the fence dividing the United States and Mexico; as soon as they’d touch the barbed wire, the boys would race back down the cement culvert separating the two countries near the bridge.

Thinking the boys were sneaking into the country, Mesa rushed in and tried to detain one of them. That’s when, federal authorities claim, some of the boys began to throw rocks. According to a lawsuit filed in the case, Hernandez hid beneath one of the bridge’s pillars as Mesa grabbed another boy and dragged him along the concrete.

Then Mesa turned, pointed his gun across the border and squeezed off two rounds, according to a lawsuit Hernandez’s family filed against Mesa, U.S. Customs and Border Protection and the federal government. Hernandez died when one of those bullets struck him in the face.

Lawyers who have looked at Hernandez’s case, and a growing number of others like it, argue that a landmark U.S. Supreme Court decision that granted constitutional protections to those detained by the U.S. government at Guantanamo Bay should also apply to Mexican citizens who interact with American law enforcement along the border — even if they’re on Mexican soil when those rights are allegedly violated.

In a supporting brief recently filed with the Supreme Court, which is currently deciding whether to hear Hernandez’s case, Houston appellate lawyer Martin Siegel and a renowned constitutional scholar named Erwin Chemerinsky insist that if the Constitution covers foreigners detained at Guantanamo Bay, then certainly Mexicans shot by U.S. Border Patrol agents should be afforded the same protections.

In his brief to the high court, urging it to hear Hernandez’s case, Siegel writes that these allegations against Border Patrol, if true, represent “a horrific example of official wrongdoing — the killing, for no reason, of a Mexican child playing only a few feet from the United States border by a Border Patrol agent.”

As lawsuits like Hernandez’s have begun to surface in the courts in recent years, judges have struggled with how to handle allegations of police brutality and unlawful deadly force along the border when the victim dies in Mexico. Many lawyers — and even some appellate court judges — warn that shootings like Hernandez’s will only hit the courts with increased frequency as politicians continue to deploy more and more law enforcement officers to the U.S.-Mexico border.

While a panel of three judges with the federal Fifth Circuit Court of Appeals initially ruled in favor of Hernandez, saying a Border Patrol agent can in fact be sued for shooting and killing a Mexican boy who died on Mexican soil, the full appellate court later heard and dismissed the case. Hernandez, the court ruled, had “no significant voluntary connection” to the United States, and therefore (under current case law, at least) constitutional protections could not apply.

Still, some of the judges on that court issued separate opinions saying that doesn’t necessarily mean the Constitution shouldn’t be extended to foreigners in such cases. Fifth Circuit Judge Edith Jones, in a separate opinion, lamented that her court, in essentially punting on Hernandez’s case, “has unfortunately taken the path of least resistance." In her opinion, Jones says the courts currently have no clear guidance on what to do with these cases. Reiterating the pressing need for the Supreme Court to hear Hernandez’s case, or one like it, Jones wrote, “This compromise simply delays the day of reckoning.”

And indeed, lawsuits like Hernandez’s have followed the rapid increase in federal agents along the border.

Like the case of Juan Pablo Perez Santillan, who on July 7, 2012, stood on the Mexico side of the Rio Grande helping guide immigrants as they swam across the river into Brownsville. The first group had already crossed and a second group was in the water when Perez saw Border Patrol agents approaching. From the riverbank, he shouted and waved his hands, telling the immigrants to swim back to Mexico.

USCBP officials later said the unknown agent (officials haven't released his name) who killed Perez thought he saw him waiving a gun. Using a long-range rifle with a high-powered scope, the agent fired a bullet into Perez’s chest. Perez was only holding a sweat rag.

Perez’s brother, according to the lawsuit, was in one of those groups of immigrants who managed to swim back to the Mexico side of the Rio Grande. When he reached the shore and saw Perez lying in a pool of blood, he yelled for help. He claims he heard one of the agents say, “que se muera el perro.” Let the dog die.

In 2008 the U.S. Supreme Court ruled in Boumediene v. Bush that the Constitution, at least in part, covers suspects detained at Guantanamo Bay because the base, while on foreign soil, is under the de facto control of the U.S. government. Similarly, Siegel argues that Border Patrol’s extensive, quasi-military control over the entire border region means constitutional protections should apply to Mexican citizens who encounter American law enforcement — even if they wind up dead on Mexican soil due to that encounter.

The Fifth Circuit, pulling from another court ruling, ultimately concluded that Hernandez had no “significant voluntary connection” to the United States, and thus deserved no constitutional protections. Perhaps Hernandez’s significant involuntary connections to the United States, like living near an area effectively controlled by U.S. Border Patrol agents and dying from a bullet fired by an American lawman standing on American soil, will convince the high court otherwise.

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