The U.S. Border Patrol’s union says that an appellate court ruling allowing a foreign national’s family to sue Border Patrol agents could seriously endanger officers, who in the future might hesitate to use deadly force when necessary.
On Monday, the 5th U.S. Circuit Court of Appeals in New Orleans overturned a lower court’s ruling and reinstated a case filed by the family of Sergio Adrian Hernandez Guereca. Hernandez, 15, was killed in 2010 by Jesus Mesa Jr., a Border Patrol agent patrolling the banks of the Rio Grande in El Paso during what was called a “rock-throwing incident.” Hernandez was on the Mexican side of the international boundary when Mesa fatally shot him from the Texas side.
“We’re concerned, and we think [Monday’s ruling] is going to have a very chilling effect,” said Shawn Moran, vice president at-large and a spokesman for the National Border Patrol Council.
After the shooting, Hernandez’s family sued the federal government, U.S. Customs and Border Protection, the Department of Homeland Security and Mesa, alleging the teen’s civil rights had been violated.
A U.S. district judge dismissed the initial cases because Hernandez was a Mexican national and was on Mexican soil when the shooting occurred. In its decision, the 5th Circuit panel reversed the decision and said the family could file suit under a Fifth Amendment claim. It upheld the dismissals against the U.S. agencies however, because the U.S. “has not waived sovereign immunity for any of the claims asserted against it,” the justices wrote. They also upheld the dismissals against Mesa’s supervisors, who were not “personally responsible for the alleged constitutional violations.”
Moran said he hadn’t spoken with Mesa’s attorneys but hopes the agent’s legal team will ask the U.S. Supreme Court to review the case and dismiss it. He said he fears that when agents come under attack, they will think twice about how to respond, including whether to use deadly force, because they could face a civil suit after doing what they’re trained to do.
“I don’t want to see any more dead Border Patrol agents,” Moran said.
The American Civil Liberties Union of Texas hailed Monday’s decision as justice that should help keep an overzealous law enforcement agency in check.
“Today the Fifth Circuit helped ensure that [Customs and Border Patrol] agents are held accountable for shocking and outrageous abuse, even when their victims aren’t inside the U.S.,” Adriana Piñon, an ACLU of Texas staff attorney, said in a statement.
“Since 2010, CBP agents killed six Mexican nationals who were standing near the Mexico side of the U.S-Mexico border and CBP has taken no steps to hold the agents accountable. The Fifth Circuit clearly signaled that Border Patrol cannot operate with impunity.”
Hernandez and his friends were playing a game where the youths would run across a culvert and touch the fence separating the two nations, according to “factual allegations” asserted in the justices’ opinion.
“As they were playing, United States Border Patrol Agent Jesus Mesa, Jr. arrived on the scene and detained one of Hernandez’s friends, causing Hernandez to retreat ‘beneath the pillars of the Paso del Norte Bridge, in Mexico to observe,” they wrote. “Agent Mesa, still standing in the United States, then fired at least two shots at Hernandez, one of which struck him in the face and killed him.”
The shooting occurred when Ciudad Juárez was in the throes of a drug war that claimed thousands of lives in the border city and fueled worries of spillover violence into Texas. Hernandez was rumored to be involved with human smuggling, according to a CNN report. His family immediately denied the allegations, saying he was a good son who was merely playing a game with his friends.
A cellphone video of the incident also cast doubts that the agent was surrounded and being pelted with rocks, though the video shows several people running from Mesa after he approached them on his bicycle.
The ruling comes after a directive issued in March that stated agents should avoid shooting at vehicles merely fleeing the scene of an alleged crime and asked them to consider alternatives to drawing and firing their weapons when “projectiles” are thrown at agents, including rocks.
Like the directive, Moran said the ruling was another indication that for the past year, it has been “open season on Border Patrol agents.”
“Everyone seems to have an opinion on how we do our jobs,” he said.