Tuesday, July 8, 2014




Note: 49 pages of possibly really bad consequences?
Rocks BTW, have a very long history of being lethal.


Mexican teen fatally shot by Border Patrol agent had rights, court rules
Published June 30, 2014Associated Press


EL PASO, Texas – A federal appeals court ruled Monday that a Mexican teenager killed by a Border Patrol agent was protected by the U.S. Constitution, even though the teen was on Mexican soil when he was shot.

The ruling from the 5th U.S. Circuit Court of Appeals means the family of 15-year-old Sergio Adrian Hernandez Guereca can move forward with a civil lawsuit against the agent.

"This recognizes human rights belong to everyone. Not just American citizens," or human beings standing on U.S. soil, said Bob Hilliard, one of the lawyers representing the family.

The original lawsuit was filed against the Border Patrol, the Department of Homeland Security, Customs and Borders Protection, agent Jesus Mesa and the U.S. Department of Justice. But part of the ruling relieves the agent's supervisors and the agencies from responsibility.

"The appellants (do not point to) any other evidence that would suggest that the supervisors were personally responsible for the alleged constitutional violation," the ruling says.

Hilliard said the family will likely appeal that part of the ruling.

Both the government and Mesa can also appeal the ruling. The Border Patrol said they would not comment on the matter as it opens the possibility of litigation. Mesa's attorney did not immediately respond to requests for comment from The Associated Press.

Mesa shot Hernandez in 2010 near a border bridge between El Paso and Ciudad Juarez while trying arrest immigrants who crossed illegally into the United States. Mesa said he was attacked by rock throwers. Border Patrol agents are allowed to shoot at rock throwers if they feel their lives or those in their custody are at risk.

U.S. District Judge David Briones found in 2011 that the family could not sue because the shooting's effects were "felt in Mexico." But the appeals court said that "territorial approach" would allow agents to establish "zones of lawlessness."

It "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," the appeals court ruling says. It also says that giving people standing on Mexican soil protection from "conscience shocking" actions by border agents, such as the shooting of Hernandez Guereca, is not a new policy. Immigrants that are inside the U.S., even those who are to be removed from the country, "are entitled to feel free of gross physical abuse by federal agents," it says.

Extending that right to people injured across the border by U.S. agents standing on U.S. soil, would inform the officials that they are not allowed to arbitrarily inflict harm in this "new, but similar, context," the court said.

"Today the Fifth Circuit helped ensure that CBP agents are held accountable for shocking and outrageous abuse, even when their victims aren't inside the U.S. ... The Fifth Circuit clearly signaled that Border Patrol cannot operate with impunity," American Civil Liberties Union senior staff attorney Adriana Pinon said in a statement. The ACLU was not directly involved in the case.


Topics: Border Protection | Immigration
Federal court: Mexican boy killed by Border Patrol had Fifth Amendment rights
July 6, 2014 | By Zach Rausnitz


Overturning a lower court's decision, a federal appeals court ruled that a Mexican boy killed by a Border Patrol agent may have had his Fifth Amendment rights violated, even though he was shot in Mexico and was not a U.S. citizen.

The case presented complex legal questions because the Border Patrol agent was standing in the United States when he shot across the border and killed 15-year-old Sergio Hernandez, who was standing in Mexico, the ruling (pdf) said.

The shooting occurred in June 2010, when Hernandez and some friends were playing a game that involved running up to a fence that divides the United States and Mexico. Border Patrol Agent Jesus Mesa detained one of the friends, while Hernandez retreated to observe. Mesa then fired multiple shots at Hernandez, killing him, as was detailed in the ruling.

Hernandez's parents brought lawsuits against the U.S. government, Agent Mesa and his supervisors. A federal court in Texas rejected the lawsuits. But, in the June 30 ruling, the U.S. Court of Appeals for the Fifth Circuit said the parents are permitted to sue Agent Mesa, but not the U.S. government or Mesa's supervisors.

Mesa may have violated Hernandez's Fifth Amendment right to due process, the ruling said. While the court said foreign nationals located outside the United States don't have Fourth Amendment rights to protect them from unlawful search and seizure, it said they should still receive basic due process. Constitutional principles can extend to non-U.S. citizens outside the United States when it would not be "impracticable and anomalous" to enforce those protections, the ruling said.

"Recognizing extraterritorial application of the Fifth Amendment for conscience-shocking conduct" - such as excessive force - "would not force agents to change their conduct to conform to a newly articulated standard," the court explained. In this case, the Border Patrol already has standards regarding use of force to which its agents are supposed to adhere.

The appeals court didn't try to assess whether Agent Mesa is liable for damages. Further proceedings in a lower court will determine that.

For more:
- read the ruling (pdf)


Related Articles:
CBP publicly releases critical report, revises handbook on lethal force use by agents
Border Patrol agents hardly ever punished following abuse allegations
Appeals court restricts en-masse immigration proceedings

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