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U.S. Court: Mexican Teen Killed By Border Patrol Had Rights


In 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 victim's family can now sue that federal agent or agents. NPR's John Burnett is on the line with us from Austin to explore what this decision means. And John, precisely what did the court say?

JOHN BURNETT, BYLINE: Well Renee, they used really strong language. They said foreign citizens should be free from gross physical abuse from federal law enforcement agents across our nation's borders. And they concluded no reasonable officer would have understood the border patrol agent's conduct to be lawful.

MONTAGNE: And John, what was the incident itself that led to this original lawsuit against the border patrol agent?

BURNETT: OK, so it was June 7, 2010. A 15-year-old named Sergio Adrian Hernandez was with a group of other youths in Juarez, Mexico, just across a concrete drainage culvert from El Paso. A border patrol agent named Jesus Mesa Jr. was on bicycle patrol. He detains a suspect on the U.S. side. He says rocks were thrown from a group in Mexico and he feared for his life, pulls his handgun and fires at Hernandez who was standing only a few yards away in Mexico. Cell phone video that was shot at the time, later shown on TV, appears to show that Hernandez was not throwing rocks. So the FBI investigates, and the U.S. attorney declines to press criminal charges against Agent Mesa. But Hernandez's mother twice sues the border patrol agent, and says her son was unarmed, he didn't commit a crime, presented no threat to the agents when he was killed. Twice, a federal judge in El Paso throws out the lawsuit, saying that a plaintiff on foreign soil cannot sue a federal agent.

MONTAGNE: So what does this decision mean in terms of how U.S. border agents actually conduct their jobs along the border?

BURNETT: If the ruling stands - and that's a big if - foreign plaintiffs will be able to sue a federal agent who is doing his job on the border. I spoke to a spokesman for the border patrol's union and he said they were very disappointed. He said this opens up border patrol agents to civil action. It could make them less likely to defend themselves because they'd be fearing lawsuits. And he said their job is hard enough as it is. But you have to remember, the border patrol has been bitterly criticized in recent years for a spate of these deadly use of force incidents. And listeners may recall that we've reported on them a fair amount here on MORNING EDITION. This opinion directly affects not only this case but at least two other high-profile lawsuits against the border patrol for shooting and killing Mexicans that they say were rock-throwers, in which witnesses said were completely innocent. In one case, a Mexican man was standing on the banks of the Rio Grande in Nuevo Laredo picnicking with his family. He was shot by an agent from an airboat in the river. In the other incident, there was a 16-year-old on a sidewalk in Nogales, Sonora who was shot by border officers who were standing on the Arizona side. These all became big international incidents with lots of protests, lots of coverage in the southwestern U.S. media and in the Mexican media.

MONTAGNE: And so what is the precedent here?

BURNETT: Well, Bob Hilliard is the Corpus Christi trial attorney who filed the appeal. He told me this is the first time that a court has acknowledged that a foreign national standing in a foreign country in the shadow of the United States is protected by the Fifth Amendment of the Constitution. That says no person shall be deprived of life, liberty or property without due process of law. What happens now is the border patrol agent's attorney says he will ask the entire Fifth Circuit Court of Appeals en banc to rehear the case. If they do uphold the three-judge panel's decision then either the U.S. government will settle with Hernandez's family or the case could go to the Supreme Court.

MONTAGNE: John, thanks very much.

BURNETT: It's a pleasure, Renee.

MONTAGNE: That's NPR's John Burnett speaking to us from Austin. You're listening to MORNING EDITION from NPR News. Transcript provided by NPR, Copyright NPR.

As NPR's Southwest correspondent based in Austin, Texas, John Burnett covers immigration, border affairs, Texas news and other national assignments. In 2018, 2019 and again in 2020, he won national Edward R. Murrow Awards from the Radio-Television News Directors Association for continuing coverage of the immigration beat. In 2020, Burnett along with other NPR journalists, were finalists for a duPont-Columbia Award for their coverage of the Trump Administration's Remain in Mexico program. In December 2018, Burnett was invited to participate in a workshop on Refugees, Immigration and Border Security in Western Europe, sponsored by the RIAS Berlin Commission.
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