A Border Patrol agent who shot and killed an unarmed Mexican teenager across a border fence in 2010 cannot be sued in United States by the teen’s family, a federal appeals court ruled Friday.
Reversing a previous three-judge panel ruling by the same court, the U.S. Circuit Court of Appeals for the Fifth Circuit unanimously ruled Friday that family members of a Juarez, Mexico, teen did not have a right to sue Border Patrol Agent Jesus Mesa, who took the fatal shot across the border wall in 2010.
Mesa shot then-15-year-old Sergio Adrian Hernandez Guereca in the face when he “poked his head out behind a pillar of a train trestle,” USA Today reported last year when a three-judge panel of the court ruled that the family of someone killed in Mexico had a right to sue in the U.S.
According to the Los Angeles Times, the federal appeals court ruled that “a 4th Amendment claim cannot be asserted by a Mexican citizen on Mexican soil with no significant connection to the United States … While there were differing rationales expressed in concurring opinions on whether Mesa violated Hernandez’s 5th Amendment rights, the court was unanimous in concluding that such rights could not have been clear to the agent. ‘No case law in 2010, when this episode occurred, reasonably warned Agent Mesa that his conduct violated the Fifth Amendment,’ the unsigned majority opinion said.”
Mesa claimed that he was surrounded by rock throwers after he responded to a group of four suspected border crossers making their way through an opening in the border fence, according to FBI Special Agent Andrea Simmons in 2010. She said Mesa fired his service weapon several times only after he detained two border crossers, while other individuals surrounded him and threw rocks at him. Mesa fired several times with his service weapon.
Video obtained by CNN and Univision by a witness on a cell phone camera contradicts Simmons’ account. In the video, border crossers are shown running under a railroad, which connects the United States with Mexico. Border Patrol agents detained two Mexican nationals, then an officer pointed to “what appears to be his firearm in the direction of a second suspect, standing about 60 feet away from the officer — on the Mexican side of the border. The video shows the suspect running away,” according to CNN. Moments later, two gunshots were heard, followed by a third gunshot later. A suspect is seeing running, then witnesses scream “they’re throwing rocks” as officers open fire. Someone says, “They hit him. … they hit him.” Hernandez Guereca, who was on the Mexican side of the border, was shot in the head.
It’s unknown whether the teen’s family will appeal to the U.S. Supreme Court, but Mesa’s lawyer told the Los Angeles Times that based on the unanimous ruling, he “doubted the U.S. Supreme Court would take up the case if the teenager’s parents pursued an appeal.”
The Customs and Border Protection agency has been criticized for a number of intentionally abusive, and even fatal, encounters with migrant border crossers. In a survey of 67 cases involving deadly force, NPR reported that some agents “deliberately stepped in front of moving vehicles to justify shooting and also fired at people throwing rocks out of frustration from the [sic] across the Mexican border.” Between 2009 and January 2012, only 13 out of 809 abuse complaints against border agents resulted in disciplinary action, while “no action” was taken on 97 percent of complaints filed through nine southwestern sectors, according to an American Immigration Council (AIC) report.
Last year, the Department of Homeland Security (DHS) issued revised guidelines for Border Patrol agents to limit the use of deadly force against moving vehicles and rock throwers. It appears that the guidelines may be working. In the first six months of the 2015 fiscal year, there were 385 use of force incidents, with 17 incidents involving firearms, down nearly 30 percent from the same period the year before. Earlier this month, Customs and Border Protection Commissioner R. Gil Kerlikowske said, “This reduction in the use of force is encouraging, considering that assaults against agents are trending upward. … there are times when some level of force must be used. In those instances, the use of force must be justified and within CBP policy.”