U.S. Border Patrol Agent Jesus Mesa Jr. claims that when he shot and killed 15-year-old Sergio Adrian Hernández Güereca in June 2010, it was because Güereca was throwing rocks at him from across the border. Although the Justice Department cleared Mesa of wrongdoing, the Mexican government and the American Civil Liberties Union (ACLU) have joined a lawsuit filed by the boy’s parents. To win, they will have to overcome the argument that constitutional protections stop at the border.
In April 2012, the Justice Department announced that Mesa’s use of force was reasonable under Customs and Border Protection policy. In any case, the department said, “a prosecution under the federal criminal civil rights statutes would be barred because…Hernandez-Güereca was neither within the borders of the United States nor present on U.S. property.”
Last year U.S. District Judge David Briones dismissed a lawsuit against the U.S. government by Güereca’s parents on similar grounds. Because Mesa’s bullets hit Güereca on the far side of the border, he ruled, the “harm that the Plaintiffs allege…was felt in Mexico,” and the government is immune to claims arising beyond its borders. Briones let the case against Mesa proceed.
Joining the appeal of Briones’ decision, the ACLU argues that the government’s rationale “would mean that U.S. agents could intentionally shoot Mexican or Canadian citizens across the border with no judicial review when victims sought accountability.” Meanwhile, Mesa will need to mind the border himself. If he strays across, he faces murder charges in Mexico.