On May 6, the Washington Monthly published my Investigative Fund report on US Border Patrol agents firing their weapons into Mexico; in six cases, they killed Mexican civilians in Mexican territory. The details of the incidents are shocking and raise serious questions about Border Patrol protocol. And according to court documents and attorneys for the victims' families, there is no legal recourse for them. Current US law does not allow foreign nationals to file suit against the US government if the incident occurs in a foreign country. Even if a US Border Patrol agent, standing in the United States, kills someone standing in Mexico, the Mexican family of the victim cannot file suit.
Over the past five years US border agents have shot across the border into Mexico at least ten times, killing six and wounding two others. The details of the cases remain murky as the US government has not been forthcoming with details. Names of agents involved are kept from the public. Investigations, conducted by the Department of Homeland Security are kept sealed with no information provided to media or victim's families. Reprimands or prosecutions of agents involved in these ten cases are non-existent or missing from the public record.
Bob Hilliard is an attorney for the US law firm of Hilliard/Shadowen, which is representing family members of some of the cross border shooting victims. They specialize in economic justice and civil rights cases. One of their clients is the family of Sergio Hernandez Guereca. In 2011, the 15-year-old boy was shot by US Border Patrol agent Jesus Mesa near the Juarez, MX / El Paso, TX border. Hernandez was standing in Mexico when he was shot. He was watching the Border Patrol agent apprehend would-be border crossers when, reports say, some of them began throwing rocks. Video evidence proves that Hernandez was not amongst the rock throwers but standing approximately forty yards away, under a bridge on the Mexican side of the border. Agent Mesa pointed his handgun southward at the rock throwers and opened fire, striking Hernandez in the face and killing him instantly.
In 2011, Hilliard and his firm brought a $25 million wrongful death civil suit against the US government. The case was dismissed — not because it lacked merit but because it lacked the appropriate zip code. According to the decision by Senior US District Judge David Briones, “[The] constitutional constraints on U.S. officers' excessive use of force and wrongful taking of life did not apply to the border agent's conduct because, although all of his conduct occurred solely in the United States, the victim was not a U.S. citizen and incurred the injury in Mexico.”
In an interview in El Paso last week, Hilliard told me, “Our whole goal here was to present our case to a jury. We have been prohibited from presenting our case to a jury because the district court has dismissed our case against the government. We have the right to appeal that decision. We believe that the decision is in error and we are going to ask the Fifth Circuit Court of appeals to reverse that decision and hold that we should be allowed to bring our case in court.”
According to Hilliard, the judge's ruling was based on a Supreme Court case, Sosa v. Alvarez, which denied the possibility of a foreign national bringing suit against the US government. In 1985, Humberto Álvarez-Machaín was alleged to have kidnapped and murdered a Drug Enforcement Agent so he fled to Mexico. The Drug Enforcement Agency, however, was unable to convince Mexico to extradite Álvarez-Machaín, so they hired several Mexican nationals to capture him and bring him back to the United States to stand trial. He was charged with the kidnapping and murder of a federal officer. Alvarez was set free due to lack of evidence; he later attempted to sue the United States for his abduction and extradition. The Supreme Court ruled that Alvarez could not sue the US government because the abduction happened in Mexico. This case was the precedent that Judge Briones cited when he threw out the Hernandez case.
But Hilliard believes the case of the 15-year-old boy is different and should be treated differently. “The case that the district relied upon,” he said, “is not a death case, is not a wrongful death case. It does not involve a Border Patrol agent or a federal agent on the United States side of the border shooting across the border and killing a Mexican national… And yet the district court used that opinion to dismiss our case.”
If this decision is allowed to stand,“ Hilliard continued, ”the message and the clear legal standing would be this: a federal agent, standing in the United States, so long as they are standing on the United States side of the border, can shoot and kill a Mexican citizen with immunity, with no legal recourse available to that Mexican citizen in the United States. That would be the holding. We believe that would be a mistake and tragedy if that kind of ruling is upheld.“
Shortly after the district court threw out the Hernandez lawsuit I asked Maria Guadalupe Guereca, Sergio's mother, what she thought about the judge's decision, ”I am not looking for revenge. After all this I still believe in God and He will do what is right. It may be many years from now but I believe that God will punish this man because my son was not a criminal.“
In October of 2012, 16-year-old Jose Antonio Rodriguez was shot in the back eight times by US Border Patrol agents. Antonio Rodriguez was standing in Mexico when he was killed and agents standing on the American side opened fire because, agents said, rocks were being thrown at them from the Mexico side of the border. According to Mexican investigators and an eyewitness, it does not appear that Antonio Rodriguez was amongst the rock throwers.
Luis Parra, an attorney from Nogales, Arizona representing the Rodriguez family is planning to file a wrongful death suit against the US government much like in the Hernandez case. He is aware of the legal roadblocks but hopes that his lawsuit will add to the growing chorus of cases against Border Patrol agents firing into Mexico. ”Jose Antonio was walking down the street in his home country when he was shot in the back eight times. He couldn't defend himself and he was innocent,“ said Parra. ”His family deserves justice.“
In September 2012, in Nuevo Laredo, MX, Guillermo Arevalo Pedroza, was with his family celebrating his two daughters' birthdays in a park near the border when gunfire erupted. Border Patrol agents said that people in the park started throwing rocks at them so they opened fire. Hilliard/Shadowen is preparing to file a civil suit against the federal government for the wrongful death of Arevalo Pedroza. Again, the roadblocks to winning any civil suit against the US government in these cases seem insurmountable, but Hilliard still holds out hope. ”We're talking about a real case, he told me. “We're talking about a real life. We're talking about a real death. I have confidence in our jurisprudence.”
Some of the cross border shooting cases have not attracted attorneys. Some have fallen away from public awareness but in each of the cases, according to the ACLU, the victims and their families have rights. In July 2012, the ACLU affiliates in Arizona, New Mexico, Texas, and San Diego & Imperial Counties filed an amicus brief that argued, “It is not the location of the claimant that is critical in triggering an extraterritoriality analysis but the location of government activity.” I spoke with Sean Riordan, staff attorney for the ACLU of San Diego & Imperial Counties, about the ACLU's position. He said, “The [US] constitution protects all people from unjustified deadly force at the border. It would be a dark and dangerous precedent for the courts to hold that federal agents can kill people with impunity merely because they are just across the border and not US citizens.”
As US law stands now, none of victims' families in the six cases of cross border shootings that ended in death will, at this point it appears, be successful in bringing civil suits against the US government regardless of the merits of the case, as foreign nationals are barred from suing Washington. The cases that have attorneys litigating on behalf of the families are waiting for the appellate court decision in the Hernandez case which could be well over a year away. Attorneys believe that these cases are so entirely lacking in precedent that they just might be headed for the US Supreme Court — and for Sergio's mother, at least, that day of reckoning can't come soon enough.