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Supreme Court to Decide Fate of Case That Challenges Cross-Border Killings by US Agents

August 31, 2017

Source: Vice News, Andrew Kennis

Sergio Adrian Hernandez was a slender 15-year-old boy who loved soccer and aspired to be a police officer when he was shot through his left eye by Jesus Mesa Jr., a US Border Patrol agent, on June 6, 2010 in Ciudad Juarez.

Guillermo Arevalo Pedroza, a longtime construction worker, was in the midst of a family barbecue picnic and birthday celebration on September 3, 2012 when he was shot by the Border Patrol. The 37-year-old Arevalo bled to death in his 10-year-old daughter's arms in Nuevo Laredo, just across the border from Laredo, Texas.

José Antonio Elena Rodríguez was taking an evening walk to pick up a hot dog at a local food stand when he was hit by at least 12 rounds from a Border Patrol agent's .40 caliber pistol. The 16-year-old died on October 10, 2012 in Nogales near the Arizona border.

Juan Pablo Santillan was collecting firewood on July 7, 2012 with his brother when he was killed in Nogales. His brother said the man behind the gun responded to an appeal for help by yelling "Let the dog die."

All these victims were Mexican nationals who were unarmed and, according to background checks, only one had a criminal record. All the deaths occurred in border towns in Mexico. Most importantly, they were among the seven people killed on Mexican soil since 2010 by Border Patrol agents who fired their weapons from the US side of the border.

Based on more than 13,000 documents worth of data coming from Border Patrol reports, records from the Mexican foreign ministry, news accounts compiled by the Southern Border Coalition, and an investigation by the Arizona Republic, Border Patrol agents have killed at least 52 people since 2004, including 15 US citizens, with 30 of those fatalities occurring since 2010, including the seven cross-border cases.

Now the families of these victims, their lawyers and advocacy groups, have joined together to force a decision with important implications for border politics, as well as their respective quest for justice.

One of the cases, the shooting of the 15-year-old boy, led to a lawsuit— Hernandez v. Mesa — that is now before the US Supreme Court, which is due to decide by April 1 whether to postpone the case, fully consider it, or throw it out altogether. At the same time, several other cases are moving through the courts, including another civil suit that is similar to the one being considered by the Supreme Court and the first criminal case ever to be prosecuted for a cross-border shooting.

If the Supreme Court either rejects the case, or if it upholds the last appellate court ruling in the government's favor, Mexican families will not have the right to sue the government for civil rights violations of deceased relatives who have been victims of cross-border killings at the hands of Border Patrol agents.

However, if Mexican families win either or both of the civil cases, they will gain Fourth and Fifth Amendment rights, including the chance to sue Border Patrol agents who kill or seriously injure their family members. This could result in compensatory damages via the constitutional and civil rights they will have gained.

The Hernandez v. Mesa case got to the Supreme Court after the notoriously conservative Fifth Circuit Court of Appeals, which has jurisdiction over all of Texas and many border areas, ruled against the families. The government argues that this is a case where "qualified immunity" applies to the agent responsible for the shooting. This means that in order to successfully sue a government official, you have to show a violation of clearly established law. The Fifth Circuit agreed, reasoning that it is not clearly established by law that the US Constitution applies to a Mexican national killed in Mexico.

Lawyers representing the families argue that this argument circumvents the obvious.

"You don't need a court decision to say that it is wrong to kill an unarmed 15-year-old boy," says Steve Shadowen, one of the lawyers representing the Hernandez family.

"It's common sense and decency that you get judicial review when it comes to police killings of unarmed children," he added.

Shadowen also stressed that at the time Hernandez was shot, the officer didn't know whether the boy was a US or a Mexican national.

Federal agencies — Border Patrol is part of US Customs and Border Protection (CBP), which is part of the Department of Homeland Security — have tended to justify cross-border killings on the grounds that Border Patrol agents only shot because they were in danger from the victims throwing rocks at them. Lawyers for the families of shooting victims have dismissed this argument, as have US government officials in other contexts. When Hillary Clinton was secretary of state, she criticized Egyptian security forces for using deadly force against stone-throwing protesters shortly before the fall of the US-supported Hosni Mubarak regime.

At the international level, United Nations Commissions on Human Rights, civil rights groups such as the American Civil Liberties Union, and human rights groups such as Amnesty International and Human Rights Watch have issued condemnations against fatal force being used against rock throwers.

The so-called "rockers" defense was used in the case of Hernandez, though now there are serious doubts about whether the teen ever even threw a stone before he was killed on the Mexican side of the Rio Grande.

James Tomsheck, a former CBP internal affairs director turned whistleblower, recently wrote in a deposition for the Supreme Court case that he saw three different videotapes of the murder of Hernandez, and they all confirmed that the teenager did not throw any rocks at Mesa.

Tomsheck also recalled the assessment of a senior FBI official who stated that if the Border Patrol were a municipal police agency, its excessive use of force would have resulted in it being put into "federal receivership," similar to what has happened in Ferguson, Albuquerque, and other cities with troubled police departments where the Department of Justice has intervened by launching civil rights probes.

The 52 people killed by Border Patrol agents since 2004 include several unarmed men who were beaten to death, a Mexican citizen who died after he was forced to drink concentrated liquid methamphetamine, and other civilians who were shot, pepper-sprayed, or shocked with stun guns.

Tomsheck also recalled the assessment of a senior FBI official who stated that if the Border Patrol were a municipal police agency, its excessive use of force would have resulted in it being put into "federal receivership," similar to what has happened in Ferguson, Albuquerque, and other cities with troubled police departments where the Department of Justice has intervened by launching civil rights probes.

The 52 people killed by Border Patrol agents since 2004 include several unarmed men who were beaten to death, a Mexican citizen who died after he was forced to drink concentrated liquid methamphetamine, and other civilians who were shot, pepper-sprayed, or shocked with stun guns.

Some frontier watchers say Border Patrol violence is linked to less stringent recruiting standards and poor training amid a push to militarize the border that goes back several administrations. The efforts first began in the mid-90s, but accelerated dramatically after George W. Bush signed the 2006 Secure Fence Act, which led to more than 600 miles of fencing and additional funding for staff and surveillance. Funding increases continued under the Obama administration, which has deported more people than in any other previous administration.

"The means by which [potentially hired Border Patrol] personnel have been screened has led to a significant percentage who are unfit to carry a gun and a badge," said Chris Rickerd, a staff attorney at the American Civil Liberties Union who has long monitored the lack of punishments registered against the Border Patrol. "It is the largest law enforcement agency in the country, but [the CBP] doesn't nearly have the commensurate oversight and accountability it needs."

It is rare for CBP to even release the names of agents involved in shootings or the identities of their victims, and, until recently, there had never been a criminal charge filed against any Border Patrol agent involved in a fatal cross-border shooting.

Last September, CPB agent Lonnie Swartz was charged with second-degree murder for killing 16-year-old José Antonio Elena Rodríguez. Swartz shot the teenager at least 10 times from the US side of the border while Elena Rodríguez was taking a nighttime stroll down International Avenue in Nogales, Mexico in 2012.

Luis Parra, a Nogales and Tucson, Arizona-based lawyer, is representing the family of Elena Rodríguez. "There has never been a cross-border homicide case, ever," he said. "It is unique."

Parra maintains that the government is contradicting itself by charging one of its officers with murder while also taking the position that "qualified immunity" applies to civil cases related to cross-border shootings.

Parra added that his client's citizenship is irrelevant.

"There was a boy that was shot with 10 bullets in his own country and he was not committing any crimes," he said. "What gives them the right to spray 10 bullets into a boy in his own country?"

For more than a half-decade, grieving Mexican families who have lost relatives to Border Patrol shootings have had to contend with contradictory legal decisions that have given them both victories and defeats on the path to the Supreme Court.

"Maybe, just maybe because of the death of my son, all of this mess will change," Araceli Rodríguez Salazar told VICE News. "I don't want any other parents to suffer in the manner in which I have."

Rodríguez is the mother of José Antonio Elena Rodríguez, the 16-year-old who was shot unarmed in Nogales, and whose case is currently being considered in the Ninth Circuit Court of Appeals.

Guillermo Arevalo Pedroza, the unarmed construction worker killed by the Border Patrol in 2012, was "a happy person, a playful father and a family man. He liked to play and watch soccer," his widow Nora Isabel Lam told VICE News.

"Nobody expected it and I never thought they were going to kill my husband," she said. "I am not sure if the case will be considered but I simply pray that good news will come out this when all is said and done."

Whether Border Patrol agents will ultimately be held accountable for cross-border shootings depends on the pending Supreme Court case regarding the killing of 15-year-old Sergio Adrian Hernandez. Prior to their case reaching the high court, the Hernandez family had a string of ups and downs in the courtroom. In 2012, a lower court judge acknowledged that the case involved the "wrongful taking of life," but ultimately ruled that it should be dismissed because "the victim was not a US citizen and incurred the injury in Mexico."

A partial panel of the Fifth Circuit Court reversed the decision in 2014, resulting in an unexpected and significant victory for the Hernandez family. But even that gain was short-lived — the full court reversed the decision after an appeal by the Obama administration.

Now, the Hernandez family awaits word on whether its own appeal will be heard from the Supreme Court. The court has until Friday to decide which direction it wants to go with a case that has seen a flurry of contradictory rulings.

Robert Hilliard, a lawyer for the Hernandez family based in Corpus Christi, Texas, will handle oral arguments in the case if the justices decide to hear it. He has never argued a case in front of the Supreme Court, but his colleagues told VICE News that he has been known to "bring courtrooms to tears."

Shadowen, another Hernandez family attorney and Hilliard's colleague, said he thinks it is unlikely to be thrown out, in large part because the justices decided late last year to send the case to Solicitor General Donald B. Verrilli, Jr., the government's legal expert and adviser, for consideration.

Although Verrilli wrote in opposition to the Mexican families on behalf of the federal government, Shadowen said that it's a less important indicator than the fact that most cases sent to the solicitor general for an opinion end up being fully considered by the Supreme Court.

In light of the recent death of Justice Antonin Scalia, however, some believe that the most likely decision will be a delay.

Parra, the Elena Rodríguez lawyer, said that this could also give more importance to his pending case before the Ninth Circuit since it could come to trial before the Supreme Court decides anything on the Hernandez case. Lower courts have ruled favorably for Elena Rodríguez, which could be significant going forward depending on the outcome of the separate Supreme Court case.

Hilliard nevertheless remains optimistic about his chances. He told VICE News that, at the end of the day, "You can't have a free killing zone or a place where law enforcement agents are allowed to shoot and murder innocent Mexican nationals without civil recourse."

In spite of Hilliard's optimism, the question remains: Will border immunity in terms of cross-border killings continue to survive without any legal recourse for Mexican victims? Nothing less than that question is what is at stake this week in light of the pending decision to be taken by the Supreme Court.

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