Border agent who shot Mexican teen can be sued, court says. Precedent set?

A panel of federal judges ruled Monday that the family of the Mexican teen who was shot by a border patrol agent across the border can move forward with a civil suit against the agent.

Mark Lambie/The El Paso Times/AP/File
Alondra Rojas participates in a protest held by the Border Network for Human Rights, June, 22, 2010, in El Paso, Texas, following the border patrol shooting of 15-year-old Sergio Adrian Hernandez Guereca on June 7. An appellate court ruled Monday that the Hernandez family may sue the border agent responsible for shooting the Mexican teen.

Monday's federal appeals court ruling that a Mexican teen killed by a border patrol agent was entitled to US constitutional rights even though he was standing on Mexican soil could open the door for similar lawsuits.

The decision from the Fifth Circuit Court of Appeals in New Orleans overturned a 2011 ruling that had halted a civil suit filed by the boy’s family against border patrol, the Department of Homeland Security, the US Department of Justice, and Customs and Border Protection agent Jesus Mesa.

The three judges presiding on the appellate panel ruled that dismissing the suit “would establish a perverse rule that would treat differently two individuals subject to the same conduct merely because one managed to cross into our territory,” according to the Associated Press.

The appellate court did uphold the portion of the 2011 ruling that found that the federal government agencies could not be held responsible for the incident. But the ruling means the boy's family can sue Mr. Mesa.

The family will probably appeal the part of the ruling pertaining to the government agencies, said Bob Hillard, one of the attorneys representing the family. The federal government and Mesa could also appeal.

Mesa fatally shot 15-year-old Sergio Adrian Hernandez Guereca in 2010 through a barbed-wire border fence near a border bridge between El Paso, Texas, and Ciudad Juárez, Mexico. The agent said that Sergio was throwing rocks at him across the border. 

The judges hearing the appeal were unmoved by this defense.

“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, according to USA Today. “Hernandez had retreated behind the pillars of a bridge when, unprovoked, Agent Mesa fired two gunshots in his direction.... On these facts Agent Mesa had no reason to suspect that Hernandez had committed any crime or engaged in any conduct that would justify the use of any, let alone deadly, force.”

In the past five years, US border agents have fired across the border into Mexico at least 10 times, killing six Mexican citizens standing on Mexican soil, according to a 2013 joint investigation by Washington Monthly and The Investigative Fund at The Nation Institute, a nonprofit media center. In many cases, the investigation found, the individuals were not actually migrants, but “simply residents of Mexican border towns ... who either did something that looked suspicious to an agent or were nearby when border agents fired at someone else.”

The Mexican government has called for a larger investigation into the use of lethal force by border patrol agents against unarmed individuals across the international border, according to the Los Angeles Times.

Monday’s ruling sets a precedent for the families of these victims who wish to seek damages for their losses, attorney Luis Fernando Parra told USA Today.

Mr. Parra represents the family of 16-year-old Jose Antonio Elena Rodriguez, who was shot 10 times in the back of the head, allegedly by border patrol agents firing through a border fence into Nogales, Mexico, in 2012. The agents have said the boy was throwing rocks. 

Border patrol agents are permitted to fire on rock-throwers if they feel their lives or those in their custody are in jeopardy.

"These are not small harassing attacks," Shawn Moran, a vice president and spokesman for the National Border Patrol Council, told the Los Angeles Times. "They are more like biblical stonings."

Mr. Moran told the Times that Monday's decision opened agents up to "civil liability for doing their job."

 This report includes material from The Associated Press.

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