Why are U.S. Border Patrol agents shooting into Mexico and killing innocent civilians?
Convictions are on the public record, but they are exceedingly rare. The last one I could find was that of two Border Patrol agents, Ignacio Ramos and Jose Compean, who were tried and convicted for shooting an unarmed, fleeing drug smuggler in the buttocks in 2005. The Bush administration ended up commuting their sentences in the face of public pressure, and both former agents are now free. Since then, no agents have even been disciplined for misuse of their firearms—at least so far as the public can know, since CBP refuses to disclose data on either the number of shootings by officers or the number of related disciplinary actions.
Sergio Adrian Hernandez Guereca was a small-framed fifteen-year-old who loved soccer and wanted to be a police officer when he grew up. He lived in a humble three-room cinderblock house on the outskirts of Juarez, Mexico, with his mother, brother, and two sisters.
On June 6, 2010, Hernandez went with his brother to pick up his paycheck at a furniture factory near a concrete canal that contains the Rio Grande as it passes along the border between Juarez and El Paso, Texas. Meanwhile, as captured on an eyewitness video, Border Patrol Agent Jesus Mesa Jr. was patrolling the U.S. side of the border on bicycle when he spotted a handful of Mexican men trying to cross into the United States.
Mesa quickly dumped his bike and ran for one of them, grabbing him by the hair. The others began throwing rocks at Mesa as they retreated back toward Mexico. Mesa drew his weapon and fired two rounds across the border into Mexico. He missed the fleeing men but hit Hernandez, who was watching the scene from under a concrete bridge about fifty yards away, in Juarez.
According to the Mexican forensic report, Hernandez was shot through the left eye, suffering “a direct laceration to the brain, which caused cardiac and respiratory arrest.” The medical examiner found “no evidence of a fight or struggle and concluded that the victim was surprised by the assailant eliminating any possibility to defend himself or flee.”
Though Mesa never claimed that he was struck by a rock, he said in a Border Patrol press release that he fired his weapon in self-defense. He also claimed that Hernandez was among the group of men throwing rocks. However, Cristobal Galindo, an attorney retained by the Hernandez family, says that he has seen additional tapes—one from a second eyewitness and one from a CBP surveillance camera—and neither of them show Hernandez throwing rocks. In both videos, the rock throwers are simply running by him.
A lawsuit filed on behalf of the family charges that the Border Patrol agents denied assistance to the bleeding victim. “U.S. Border Patrol Agents arrived on the scene, the shooter picked up his bicycle and then they all left,” says the complaint. “No one took any action to render emergency medical aid to Sergio, leaving him dead or dying beneath the Paso del Norte Bridge in the territory of Mexico.”
The incident caused uproar in Mexico. Felipe Calderon, then Mexico’s president, called on Washington “to investigate fully what happened and punish those responsible.” Mexico’s secretary of state called the use of firearms to respond to a rock attack a “disproportionate use of force.” And Mexican prosecutors issued a warrant for Agent Mesa’s arrest for his involvement in the killing; if Mesa ever steps foot in Mexico, he will likely be arrested and tried for murder.
But the response on the U.S. side of the border was decidedly more subdued. Alan Bersin, then CBP commissioner, promised a transparent and fair investigation but otherwise declined to comment. Two years later, the Justice Department found no wrongdoing by Agent Mesa and said no charges would be brought against him.
“The team of prosecutors and agents concluded that there is insufficient evidence to pursue prosecution,” a Justice Department press release read. “This review took into account evidence indicating that the agent’s actions constituted a reasonable use of force or would constitute an act of self-defense in response to the threat created by a group of smugglers hurling rocks at the agent and his detainee.” (Incidentally, no evidence was ever made public that the men involved in the rock throwing were smugglers.)
When the Hernandez family filed a civil suit against the U.S. government for the wrongful and negligent death of their son, a district court judge threw out the case, arguing that the family had no standing to sue because Hernandez was in Mexico when the incident occurred. According to the decision, “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.”
The ACLU filed an amicus brief in support of the appeal. Sean Riordan, the author of the brief, argues that “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 U.S. citizens.” The case has been appealed to the Fifth Circuit Court of Appeals and is so unprecedented that it may be headed for the U.S. Supreme Court.
Of the nineteen cases we have uncovered over the past two years in which people died at the hands of Border Patrol agents—six on Mexican soil—no agents have yet been prosecuted. If any of the agents involved have been relieved of their duties because of their role in the incidents, that information has not been made available to the public, and our queries to Customs and Border Protection on this issue have been denied.
This article was reported in partnership with The Investigative Fund at The Nation Institute.
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