In a 5-4 judgment, the Supreme Court has ruled in favor of border patrol agent Jesus Mesa Jr. in a cross-border shooting case which came to a close this past Tuesday.
In 2010, a 15-year old Sergio Adrián Hernández Güereca was shot in the head and killed by U.S. border patrol agent Jesus Mesa Jr. in El Paso, Texas.
According to court documents, the story unfolds with Mexican national Sergio Hernández and his friends playing a game in a cement culvert where an invisible line separates the U.S. and Mexico.
The game consisted of the kids daring one another to run up a concrete incline and touch the barbed wire of the American border fence, then running back to the Mexican side of the culvert.
While on the El Paso side of the border, border patrol Jesus Mesa managed to capture and detain one of the boys for illegal border crossing. Hernández however manages to run back into Mexico with his other friends, and this is when Mesa fired the shots that ended up killing the teenager.
In Mesa’s defense he stated that Hernández was throwing rocks at him, which caused Mesa to shoot him out of self-defense because he feared for his life. There was no evidence of Mesa’s claim however that Hernández provoked him in such a way.
The shot which killed Hernández was made from about 60 feet away, according to video captured of the incident.
When Hernández’s parents, also Mexican Nationals, attempted to extradite Mesa and prosecute him for murder charges, the U.S. denied the request. The parents then attempted to sue Mesa for violating Sergio’s fourth and fifth amendment rights, but they were once again denied by the courts on the premise that the Constitution did not apply to a murder which took place outside of the United States.
Justice Samuel A. Alito Jr. spoke on behalf of the majority decision, stating that “A cross-border shooting is by definition an international incident,” subsequently calling for a diplomatic solution instead of a legal one. Justice Alito declared further that prosecution for “injuries inflicted outside our borders,” are powers solely within the scope of either Congress or the president.
Diplomacy however had already proved useless for the family following the denial of Mesa’s extradition.
Justice Ruth Bader Ginsburg voted against the ruling and expressed demur on behalf of the court’s four liberal members, asserting that the lawsuit should have been allowed since Mesa was on U.S. soil when the shot was fired.
“It scarcely makes sense for a remedy trained on deterring rogue officer conduct to turn on the happenstance subsequent to the conduct — a bullet landing in one half of a culvert, not the other.” Ginsburg continued in her retort, “The only salient difference here: the fortuity that the bullet happened to strike Hernández on the Mexican side of the embankment. But Hernández’s location at the precise moment the bullet landed should not matter one whit.”
Lee Gelernt, an attorney with the American Civil Liberties Union, argued the case and also demonstrated strong disapproval against the decision.
“The gravity of this ruling could not be clearer given the Trump administration’s militarized rhetoric and policies targeting people at the border. Border agents should not have immunity to fatally shoot Mexican teenagers on the other side of the border fence.”
He concluded emphatically, “The Constitution does not stop at the border.”
A fine line can often come between what determines acceptable or unacceptable behavior, as well as the consequences enforced as a result of such decisions. Less often is it an invisible line separating these factors, leaving justice hanging in the balance.
John Rosenbaum is an Orange County attorney practicing in the Workers Compensation and Personal Injury fields. If you might be in need of representation, contact our office today for a free consultation.