Supreme Ct: Border Patrol Cop Doesn't Have Immunity in Murder & Coverup of Mexican Teen Shot Across the Border

From [HERE] Can the family of a slain Mexican teenager sue the federal agent who shot him across the U.S.-Mexico border for damages? The U.S. Supreme Court did not answer this question on Monday, instead opting to send a case back to a lower court.

The case centers on a larger question: whether the Constitution extends protection to an individual who is killed on foreign soil, even though that person is standing just a few yards outside the United States.

It also tests a long-held doctrine, called a Bivens action, in which plaintiffs are permitted to sue federal officials for breaking constitutional law. But that doctrine had never been applied outside the boundaries of the United States.

In oral arguments in February, some justices were concerned that making U.S. agents liable for their actions taken in a foreign nation could be extended to, say, a house full of noncombatants killed by a U.S. drone strike in Pakistan.

Bob Hilliard, the Texas attorney for the Mexican teen's family, argued that a decision could be crafted in such a way as to only address the legally vague U.S.-Mexico borderlands, where this fatal shooting took place.

A Court of Appeals had ruled that the Border Patrol agent, Mesa, had qualified immunity, which means he cannot be sued. But in today's opinion, the justices vacated that ruling.

The Supreme Court said the lower court made a mistake when it found Mesa had qualified immunity. The lower court's rationale stressed that Hernandez was not a U.S. citizen, which the justices say that Mesa did not know when he shot him.

The court also stated that another case that it decided last week, Ziglar v. Abbasi, could have bearing on Hernandez v. Mesa, which the lower court would not have considered.

The final decision has the potential to affect not only the Hernandez family, but several other Mexican families who were waiting to file civil suits against federal officers for cross-border shootings of their loved ones.

The case comes from the death in Mexico of Sergio Hernandez, a 15-year-old boy who was playing in Mexico when he was fatally shot by U.S. Border Patrol Agent Jesus Mesa, who had been standing in Texas across the Rio Grande.

The cellphone video is vivid. A Border Patrol agent aims his gun at an unarmed 15-year-old some 60 feet away, across the border with Mexico, and shoots him dead.

The shooting took place on the border between El Paso, Texas, and Juárez, Mexico.

The area is about 180 feet across. Eighty feet one way leads to a steep incline and an 18-foot fence on the U.S. side — part of the so-called border wall that has already been built. An almost equal distance the other way is another steep incline leading to a wall topped by a guardrail on the Mexican side.

In between is a the dry bed of the Rio Grande with an invisible line in the middle that separates the U.S. and Mexico. Overhead is a railroad bridge with huge columns supporting it, connecting the two countries.

Hernández and his friends were playing chicken, daring each other to run up the incline on the U.S. side and touch the fence, according to briefs filed by lawyers for the Hernández family.

At some point U.S. border agent Jesus Mesa, patrolling the culvert, arrived on a bicycle, grabbed one of the kids at the fence on the U.S. side, and the others scampered away. Fifteen-year-old Sergio ran past Mesa and hid behind a pillar beneath the bridge on the Mexican side.

As the boy peeked out, Agent Mesa, 60 feet or so away on the U.S. side, drew his gun, aimed it at the boy, and fired three times, the last shot hitting the boy in the head.

Although agents quickly swarmed the scene, they are forbidden to cross the border. They did not offer medical aid, and soon left on their bikes, according to lawyers for the family.

A day after the shooting, the FBI's El Paso office issued a press release asserting that agent Mesa fired his gun after being "surrounded" by suspected illegal aliens who "continued to throw rocks at him."

Two days later, cellphone videos surfaced contradicting that account. In one video the boy's small figure can be seen edging out from behind the column; Mesa fires, and the boy falls to the ground.

"The statement literally says he was surrounded by these boys, which is just objectively false," says Bob Hilliard, who represents the family. Pointing to the cellphone video, he says it is "clear that nobody was near " agent Mesa.

In one video, a woman's voice is heard saying that some of the boys had been throwing rocks, but the video does not show that, and by the time the shooting takes place, nobody is surrounding agent Mesa.

In other words, this race soldier cop murdered a teenager for no reason and then lied about it.

The U.S. Department of Justice decided not to prosecute Mesa. Among other things, the department concluded that it did not have jurisdiction because the boy was not on U.S. soil when he was killed.

Mexico charged the agent with murder, but when the U.S. refused to extradite him, no prosecution could go forward.

U.S. Customs and Border Patrol did not discipline agent Mesa — a fact that critics, including high-ranking former agency officials, say reflects a pattern inside the agency.

The parents of the slain boy, sued Mesa for damages, contending that the killing violated the U.S. Constitution by depriving Sergio Hernández of his life.

Previously, Hernandez’s family brought a civil rights suit against Mesa in Texas, but a federal judge tossed out the claim, saying the protections within the Fourth Amendment against use of deadly force do not extend across the border.

"I can't believe that this is allowed to happen — that a Border Patrol agent is allowed to kill someone on the Mexican side and nothing happens," Sergio's mother, Maria Guadalupe Güereca Betancour, says through an interpreter.

As the case came to the Supreme Court, there had been no trial yet and no court finding of facts. Mesa continues to maintain that he shot the boy in self-defense after being surrounded by rock-throwing kids.

The Supreme Court took up the case last year after the Fifth Circuit affirmed. It has agreed to resolve the Fourth Amendment issue as well as the Hernandez family deserves relief under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, a 1971 case that allowed individuals to bring certain constitutional claims against federal officers.

The only question before the Supreme Court centers on whether the Hernández family has the right to sue. A divided panel of the 5th Circuit Court of Appeals concluded that no reasonable officer would have done what Agent Mesa did, and that therefore the family could sue.

However, the full court of appeals reversed that judgment, ruling that because the Hernández boy was standing on the Mexico side of the border and was a Mexican citizen with no ties to the United States, his family could not sue for a violation of the U.S. Constitution. Moreover, the appeals court said that even if the facts as alleged by the Hernández family are true, Mesa is entitled to qualified immunity, meaning he cannot be sued because there is no clearly established body of law barring his conduct.

The Border Patrol changed its use-of-force policies in the wake of Hernandez's death and other controversial cross-border shootings of alleged rock throwers. Agents are now urged, if at all possible, to move out of range of thrown projectiles.