Rob O'Dell , The Republic | azcentral.com
Original Story: http://www.azcentral.com/story/news/politics/border-issues/2016/10/11/us-supreme-court-cross-border-killing-mexican-sergio-guereca-border-patrol/85671248/
The U.S. Supreme Court has agreed to hear a case to determine if the family of Mexican teenager who was killed by a Border Patrol agent firing into Mexico has a constitutional right to sue the agent in the United States.
The Supreme Court announced Tuesday it would hear the case for this term, which began earlier this month.
Sergio Adrian Hernandez Guereca was killed in Juarez, Mexico, in 2010 by Border Patrol Agent Jesus Mesa Jr.
Mesa fired at the unarmed 15-year-old as he peered out from behind a train trestle in Mexico. Mesa was in the United States when he fired the deadly shot.
A final decision by the Supreme Court could provide a definitive ruling whether those who are injured or killed by Border Patrol agents while in Mexico can sue for damages in the United States.
There have been at least six such cases since 2010, including the killing of 16-year-old Jose Antonio Elena Rodriguez. The 16-year-old was shot 10 times by border Agent Lonnie Ray Swartz, who fired through the border fence into Nogales, Mexico, in 2012. Swartz was charged with second degree murder.
Elena Rodriguez' family's civil suit is currently on appeal at the 9th U.S. Circuit Court of Appeals.
Steve Shadowen, an attorney for Guereca's family, said he and the family were pleased with Tuesday's decision. It simply cannot be national policy that an agent can shoot and kill someone standing in another country without recourse, he said.
"That's just an anathema to international law, national law and basic human rights," Shadowen said. "That can't happen."
Meanwhile, Shawn Moran, spokesman for the National Border Patrol Council, said the union was "very concerned" about the case because agents could fear acting against those who attack them from Mexico because of civil lawsuits.
"It's very hard for me to understand how a non-citizen in a foreign country has the standing to sue the U.S. government," Moran said. "It has far reaching implications beyond the U.S. border."
On June 7, 2010, in Juarez, Sergio and other youths had been running back and forth across the dry bed of the Rio Grande playing a game that involved touching the metal fence on the U.S. side of the international border.
To touch the fence, they ran across the dry concrete-covered riverbed that divides the two countries. The Federal Bureau of Investigation and Customs and Border Protection said the border agent Mesa fired in self-defense from the U.S. side after he was surrounded by rock throwers.
But several cellphone videos taken from a nearby bridge later surfaced.
They show a different story.
Mesa wasn’t surrounded. He was in the culvert trying to intercept four youths running back to Mexico across the riverbed, grabbing one as the others fled.
In one video, some youths can clearly be seen making throwing motions. But Guereca is not among them. He’s visible, peeking out from behind a pillar beneath a train trestle. He sticks his head out; Mesa fires; and the boy falls to the ground, dead, after being struck near the eye.
The Department of Justice said the evidence was insufficient to prosecute Mesa on criminal or civil charges. The Arizona Republic's reporting was cited in the petition to the Supreme Court to hear the case.
Shadowen, Guereca's lawyer, said three separate videos show that Guereca was not throwing rocks, but the agent claimed that he was. He said that's one of two reasons the U.S. government's policy cannot stand, because he said agents will just say someone was throwing rocks as their justification to shoot even if it is not true.
The other reason, he said: "Officers will shoot across the border in circumstances where they would not dare in the United States."
The Border Patrol changed its use-of-force policy months after the Republic published its 2013 investigation showing that agents in nearly 50 shootings faced little to no discipline even in highly questionable shootings.
The new policy requires agents to avoid situations where they have no alternative to using lethal force against rock throwers. That policy possibly could have prevented some of the cross border shooting deaths now being litigated.
Guereca's family filed a civil suit against the agent. It was dismissed by a Texas federal District Court judge, who said the court lacked jurisdiction since the victim wasn’t a U.S. citizen and his death took place on foreign soil. The family appealed and a three-member panel of the the 5th U.S. Circuit Court of Appeals ruled the family had a right to sue the agent.
In the 2-1 decision, the court used harsh language to describe Mesa's conduct.
"If ever a case could be said to present an official abuse of power so arbitrary as to shock the conscience, the Appellants have alleged it here," the ruling stated.
The court said the family could sue under the Fifth Amendment. The constitutional protection applies along the border because it is an area similar to Guantanamo Bay, Cuba, which is not a de facto part of the U.S. but is a location where the U.S. projects "hard power," with a heavy presence of armed federal agents.
Not giving constitutional protections would create "zones of lawlessness" where agents could move in and out of constitutional protections, the ruling said.
That ruling was mostly overturned by the full 5th Circuit Court of Appeals, which upheld the District Court judge's original ruling. The original two judges reversed themselves in the unanimous en banc ruling of all the court justices. They agreed with the full court that the constitutional rights of Guereca and his family were not clearly established in 2010 when the shooting occurred. The case was then appealed to the U.S. Supreme Court, which will now hear the case.
Mesa's lawyer, Randolph J. Ortega, said he expected the Supreme Court to take the case and was confident the high court will see the case the same way as the unanimous 5th Circuit. He said whether a person is "40 miles or 4,000 miles away doesn't make a difference" — they are still outside the United States.
"I think the 5th Circuit got it right," Ortega said. "I don't think a citizen in a foreign country should be able to invoke the laws and codes of United States."