NEW ORLEANS — Whether and when constitutional rights afforded American citizens extend to non-citizens outside the nation’s boundaries were at issue Wednesday when a federal appeals court heard arguments about the cross-border shooting death of a Mexican teenager by a U.S. Border Patrol agent.
Lawyers for the ACLU and the family of 15-year-old Sergio Adrian Hernandez Guereca told the 5th U.S. Circuit Court of Appeals that the family should be able to pursue a civil lawsuit in the United States against agent Jesus Mesa, who fired across the border from Texas in 2010, killing the teenager. Lawyers for Mesa and the U.S. Justice Department said Fourth- and Fifth-Amendment protections don’t apply to the teen.
It was the second time arguments were heard by the full 15-member 5th Circuit. The appellate court had sided with Mesa in 2015 but was told to take another look by the U.S. Supreme Court. That high court decision said the 5th Circuit should have the opportunity to review the constitutional issues in light of a 6-2 Supreme Court decision in a case known as Ziglar v. Abbasi, which said that Muslim men detained in harsh conditions in a Brooklyn jail after the Sept. 11 attacks can’t sue top U.S. law enforcement officials.
Both sides in the Mesa case have argued that the Abbasi case bolstered their respective arguments.
In question in the Mesa case is whether the family of young Hernandez, a Mexican on Mexican soil, could claim violation of rights to due process under the Fifth Amendment and the right of “the people to be secure in their person” under the Fourth Amendment. Another issue: whether Mesa, as a border agent, had “qualified immunity” from lawsuits.
The 5th Circuit judges gave no indication when they would rule.
Hernandez’s family has said he was messing around with his friends that day, playing a game in which they ran down a culvert from the Mexican side and up the American side to touch an 18-foot (6-meter) fence. Mesa arrived on a bicycle and detained one person while the others scampered back across the culvert. He then shot Guereca as the boy ran toward a pillar supporting an overhead rail bridge.
The Justice Department has said Mesa was trying to stop “smugglers attempting an illegal border crossing” and fired his gun after he came under a barrage of rocks.
The death of Hernandez is one of two that have resulted in recent high-profile court cases. Parents of another teenager, killed in Nogales, Mexico, by a federal agent in a cross-border shooting have filed a pending civil rights lawsuit.
That case also has resulted in criminal charges. Prosecutors are pursuing second-degree murder charges against Agent Lonnie Swartz in the death of Jose Antonio Elena Rodriguez, 16. Swartz was on the Arizona side of the border when he shot the teenager.