A federal appeals court has ruled that a Mexican family, whose 15-year-old son was shot and killed by a U.S. border patrol agent while on the Mexican side of the border, may not sue the agent for damages.
In a divided ruling, the majority of the U.S. Court of Appeals for the Fifth Circuit panel said the family had no constitutional standing to sue the border patrol agent.
In a majority ruling written by Judge Edith Jones and released on March 20, the court reversed a prior circuit decision holding that the family of the teenager, Sergio Adrian Hernandez Guereca , could pursue claims against U.S. Customs and Border Patrol Agent Jesus Mesa Jr. The case was on remand from the U.S. Supreme Court.
Jones, joined by 12 other judges, said that while the shooting was “tragic,” Hernandez’s family had no standing to bring a claim against Mesa.
“Implying a private right of action in this transnational context increases the likelihood that board patrol agents will ‘hesitate in making split-second decision,’” Jones said, quoting the U.S. Court of Appeals for the Third Circuit’s 2017 ruling in Vanderklok v. U.S.
According to the court, Mesa shot and killed Hernandez, 15, on June 7, 2010, while he was in a culvert along the border between Ciudad Juarez and El Paso. Mesa said he opened fire because Mexican youths were throwing rocks at him, according to the ruling,which said law enforcement officers are allowed to open fire if they believe their lives or safety are in danger.
Courts already have ruled that the Hernandez family cannot bring civil counts against the U.S. itself.
After the shooting, border patrol said Hernandez had been apprehended for, but never charged with, smuggling aliens across the border into the U.S., the court said.
U.S. District Judge David Briones of the Western District of Texas, sitting in San Antonio, found in 2011 that the family could not sue because the shooting’s effects were “felt in Mexico.” But the Fifth Circuit later reversed, saying that Briones’ “territorial approach” would allow agents to establish “zones of lawlessness.”
It “would establish a perverse rule that would treat differently two individuals subject to the same conduct merely because one managed to cross into our territory,” the appeals court said then. It also said that giving people standing on Mexican soil protection from “conscience shocking” actions by border agents, such as the shooting of Hernandez Guereca, is not a new policy. Immigrants who are inside the U.S.—even those who are to be removed from the country—”are entitled to feel free of gross physical abuse by federal agents,” the circuit ruled.
Extending that right to people injured across the border by U.S. agents standing on U.S. soil would inform the officials that they are not allowed to arbitrarily inflict harm in this “new, but similar, context,” the court said.
The government then appealed to the U.S. Supreme Court, which remanded the case.
“Because Hernandez was a Mexican citizen with no ties to this country, and his death occurred on Mexican soil, the very existence of any ‘constitutional’ right benefiting him raises novel and disputed issues,” Jones wrote in the March 20 ruling. “To date, the Supreme Court has refused to extend the protection of the Fourth Amendment to a foreign citizen.”
U.S. District Judge Edward Prado, sitting by designation, issued a dissent in which Fifth Circuit Judge James Graves joined. The dissent said it would have allowed the teen’s family to pursue claims against Mesa.
“This case simply involves a federal official engaged in his law enforcement duties acting on United States soil who shot and killed an unarmed 15-year-old boy standing a few feet away,” Prado said. “I would elect to recognize a damages remedy for this tragic injury.”
Mexican authorities had sought to prosecute Mesa on criminal charges, but the U.S. government rejected an extradition request, according to the court.
The attorney for the teen’s family, Robert Hilliard, issued a statement denouncing the ruling.
“[T]he Fifth Circuit made it abundantly clear it will not be dissuaded in its view that Sergio and others who are standing in Mexico may be gunned down for any reason by anyone with a badge standing feet away in the united states—and, when this happens, the shooter, who wears a badge and has sworn to follow the constitution, will be unfettered by the Fourth Amendment constraint on excessive force,” said Hilliard, of Hilliard Martinez Gonzales in Corpus Christie.
“The Supreme Court must now decide if this is going to be the law of our land: That in the United States there will be no constitutional consequences when cops stand on the border and shoot across into Mexico at Mexico’s citizens, or even shoot American citizens standing in Mexico,” he said.
Mesa’s attorney, Randolph Ortega of Ellis & Ortega in El Paso, could not be reached comment.