TUSCON, Arizona–The US 5th Circuit Court of Appeals ruled on Monday that the parents of Sergio Hernandez, a 15-year-old Mexican teenager who was shot and killed by Border Patrol Agent Jesus Mesa on June 7, 2010, could sue Mesa in U.S. civil court for alleged excessive use of force. This was a reversal of the initial judgment made in Mesa’s favor in the lower Western District Court in El Paso, TX.
Jesus Hernandez and Maria Guereca brought a total of eleven claims against the U.S. government, Mesa, and several Border Patrol supervisors, according to the text of the Appeals Court ruling. The first seven claims were brought under the Federal Tort Claims Act, based on “multiple allegations of tortious conduct,” and the next two claims involved allegations that Hernandez’s Fourth and Fifth Amendment rights were violated. The key claim, however, was that Mesa was liable under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics through his “use of excessive, deadly force.”
According to the text of the ruling, on the day of the shooting in 2010, Hernandez was allegedly gathered with a group of “friends” on the Mexican side of a cement culvert that separated the Texas border city of El Paso and the Mexican city of Ciudad Juárez. Advocates for the group claim they were playing a game in which they would illegally cross onto U.S. soil, run up to the barbed wire border fence and then run back. Agent Mesa detained one of Hernandez’s friends (the ruling did not explain the circumstances), after which Hernandez retreated behind the pillars of the Paso del Norte international bridge. At some point, Mesa shot at Hernandez from the U.S. side of the border into Mexico, hitting him in the face and killing him.
On April 27, 2012, the U.S. Department of Justice issued a press release announcing it had closed the investigation into Mesa’s actions, and contained information that was markedly different than the court ruling. Along with several media reports, the release said a group of individuals were attempting to illegally cross the border and were throwing rocks at agents as a diversion. Mesa said he shot Hernandez in self defense as he was being pelted while attempting to detain a border crosser. The Justice Department investigation revealed that Mesa “did not act inconsistently with CBP policy or training regarding use of force.” Although they couldn’t succeed in criminal court, Hernandez’s parents chose to pursue a lawsuit in civil court instead. Breitbart Texas Managing Director Brandon Darby previously reported how such rock attacks have caused serious bodily injury and risk of death to U.S. Border Patrol agents.
The 5th Circuit Court ruling affirmed the District Court’s decision that the claims brought against the U.S. government and Border Patrol supervisors should be dismissed, but reversed the dismissal of the claim against Mesa. The Appeals Court stated Hernandez’s parents could assert a claim that their son’s Fifth Amendment rights were violated and they had “alleged sufficient facts to overcome qualified immunity.” According to USLegal.com, qualified immunity “protects public officials from being sued for damages unless they violated ‘clearly established’ law, of which a reasonable official in his position would have known.” Furthermore, it “aims to protect civil servants from the fear of litigation in performing discretionary functions entrusted to them by law.”
The unfortunate precedent this sets for Border Patrol agents cannot be understated. All law enforcement officers are trained to deal with various kinds of threats, but those who work on the southwest border are working under unique conditions and stressors, along with the additional scrutiny that comes with regular interactions with foreign nationals. Few things place an agent’s life in danger more than the hesitation that comes with having to second-guess an action that has been ingrained to come as second nature through training.
However, this is the side effect of an agent’s concern over being sued for taking defensive action that results in a loss of life. Shawn Moran, Vice President of the National Border Patrol Council, told the Los Angeles Times in June that the union has vowed to oppose any measures that restrict the ability of agents to defend themselves. This was shortly after US Customs and Border Protection issued new use-of-force guidelines for agents, indicating (among many other things) that they should seek cover or move out of range in a rock-throwing incident whenever possible. Agents were also told “not to fire in response unless the projectiles are large enough to cause ‘serious physical injury or death.'”
As a result of the Appeals Court’s decision, Hernandez’s parents can now pursue a civil suit against Agent Mesa. The Court essentially stated that the Fourth Amendment–under which an excessive force claim is usually made–doesn’t apply to foreign nationals. However, those claims can be asserted as a violation of due process under the Fifth Amendment, which “does not limit the category of individuals entitled to protection,” unlike the Fourth Amendment.
Sylvia Longmire is a border security expert and Contributing Editor for Breitbart Texas. You can read more about the challenges facing the US Border Patrol and other law enforcement agencies along our international borders in her new book, Border Insecurity: Why Big Money, Fences, and Drones Aren’t Making Us Safer.