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Case Name: Jesus C. Hernandez v. United States of America, et al

Docket No.: 11-50792 (5th Cir.); 11-cv-00331, 11-cv-00027 (W.D. Tex.)

type:Civil Rights

filed:January 17, 2011

court:U.S. Court of Appeals for the Fifth Circuit; U.S. District Court for the Western District of Texas


On June 7, 2010, a United States Border Patrol agent shot and killed Sergio Hernández Guereca, an unarmed, unthreatening 15-year-old Mexican national.  The killing occurred along the U.S./Mexico border near the Paso del Norte bridge at El Paso, Texas, with Sergio standing in Mexico and the border guard firing the fatal shot from the U.S. side of the border.  Sergio’s death is one of ten such cross-border killings of unarmed Mexican nationals by U.S. border patrol agents in the last five years.

The FBI originally issued a press release stating that Sergio and other youths had “surrounded” the agent, who was arresting another teenager near the Paso Del Norte bridge at the U.S./Mexico border at El Paso, Texas.  Three videotapes of the incident later proved that no one had surrounded the agent, and also disproved suggestions that Sergio had thrown a rock at the agent.  See the video above taken by a passerby. 

A U.S. Department of Justice inquiry also later confirmed that Sergio had not thrown any rocks.

Before the District Court

Sergio’s parents filed suit in the U.S. District Court for the Western District of Texas, asking the court to review whether the shooting of their son was justified.  The court dismissed the claims against both the United States and the border patrol agent, asserting that Constitutional constraints on officers’ use of excessive force do not apply when the victim is standing just across the border in Mexico, even though the agent fired the deadly shot from the U.S. 

· The district court’s decisions on the claim against the United States 

· The decision on the claim against the border patrol agent 

Before the Court of Appeals

The case was appealed to the United States Court of Appeals for the Fifth Circuit.  On June 30, 2014, the Court of Appeals affirmed in part, and reversed in part, the lower court's decisions, holding that Sergio's parents can pursue their case against the border agent under the Due Process Clause of the U.S. Constitution:

· Decision of the Court of Appeals  

Below is the briefing submitted on appeal by the parties and amicus curiae.  

On the claims against the United States, which assert that the killing of Sergio violated the Alien Tort Statute and international law:

· The opening brief for Sergio 

· The United States’ responsive brief 

· The reply brief for Sergio 

On the claims against the border agent, which assert that the killing of Sergio violated the Fourth and Fifth Amendments:

· The opening brief for Sergio 

· The border patrol supervisors’ responsive brief 

· The border agent’s responsive brief 

· The reply brief for Sergio 

Several organizations filed briefs amicus curiae in support of Sergio’s claims:

· The brief of the government of Mexico 

· The brief of the Border Network for Human Rights, the Paso Del Norte Civil Rights Project, and the Southern Border Communities Coalition 

· The brief of the American Civil Liberties Union Foundation, ACLU Foundation of Arizona, ACLU Foundation of New Mexico, American Civil Liberties Union Foundation of Texas, and ACLU Foundation of San Diego and Imperial Counties 

· The brief of Professors Guinevere E. Moore and Robert T. Moore 

Articles Written about Sergio's Case:

· Their Day in Court - The Investigative Fund

· US won't release videos in Border Patrol shooting of Juárez teen, lawyers say

· Lawyers: Juárez teen fatally shot by Border Patrol agent not throwing rocks

Before the En Banc Court of Appeals

After the Court of Appeals issued its ruling favorable to Sergio Hernandez, the Fifth Circuit U.S. Court of Appeals agreed to rehear the appeal en banc.  In January 2015, 16 federal appellate judges heard arguments on the issue of whether the Constitution's fundamental right to live extends to a non-citizen standing in Mexico who was unjustifiably shot and killed by a U.S. border patrol agent. 

That constitutional issue, however, was decidedly bypassed when on April 24, 2015, the En Banc Court upheld the district court's dismissal on a different ground: that the border patrol agent was entitled to qualified immunity, i.e., that a U.S. Border Patrol agent could not have reasonably known that it was wrong to shoot and kill an unarmed, unthreatening Mexican teenager who was standing just across the border in Mexico.  It is common ground, and the Court's ruling does not deny, that the agent knew that it would have been wrong to kill a U.S. citizen who was standing in Mexico.  So the Court has ruled that it was reasonable for the agent to kill Sergio based on his nationality — and the agent can continue to kill innocent people across the border without fear of liability so long as he kills only non-U.S. citizens.

After recovering from this judicial insult to their slain son, the family will decide whether to seek further review in the Supreme Court of the United States.