Tuesday, July 1, 2014

Claim Permitted Against Border Patrol Officer for Shooting (Across the Border) and Killing Mexican National

NPR reports that "[i]n the shadow of the major Supreme Court cases yesterday, there was a lesser-noticed but momentous ruling by a federal appeals court in a case involving the use of deadly force by the border patrol. A decision by a three-judge panel of the Fifth Circuit Court of Appeals in New Orleans finds, effectively, that due process protections guaranteed by the Constitution do not stop at the border. It found, for the first time, that a border patrol agent cannot stand in the United States and shoot a Mexican citizen on Mexican soil without consequences."

The Fifth Circuit opinion was in Hernandez v. United States.  Here are the basic allegations from the complaint:

"On June 7, 2010, Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican national, was gathered with a group of friends on the Mexican side of a cement culvert that separates the United States and Mexico. Hernandez and his friends were playing a game that involved running up the incline of the culvert, touching the barbed-wire fence separating Mexico and the United States, and then running back down the incline. As they were playing, United States Border Patrol Agent Jesus Mesa, Jr. arrived on t he scene and detained one of Hernandez’s friends, causing Hernandez to retreat “beneath the p illars of the Paso del Norte Bridge” in Mexico to observe. 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 Fifth Circuit held that a Fifth Amendment claim could be asserted against Agent Mesa and that the complaint alleged sufficient facts to overcome qualified immunity.  Consequently, the court reversed the judgment in favor of Agent Mesa and remanded for further proceedings.



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