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May/ June 2013 Over the Line

Why are U.S. Border Patrol agents shooting into Mexico and killing innocent civilians?

By John Carlos Frey

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.

John Carlos Frey is an investigative reporter and documentary filmmaker focusing on the Latino/a community and the U.S.-Mexico border. He won the 2012 Scripps Howard Award for his recent PBS series on the U.S. Border Patrol.

Comments

  • John A. Randolph on May 06, 2013 4:01 PM:

    Thank you to John Carlos Frey for bringing attention to these alarming shootings.

    As a retired US Border Patrol/INS/ICE agent, I am of course not surprised that this happens. Yet the increased frequency of these shootings is very alarming.

    My work experience has shaped my perception of border issues. I have always been disillusioned about our country's approach to illegal immigration and the realities of the border insanity that are young agents must face.

    I had questions as a young agent that I still do now: Why do we chase people around at night like animals when many of those same people are the very people US farmers pay to harvest our food? What causes these people to leave their homes and risk sneaking into our country? Why does our government fail to give us (The US Border Patrol) the required or necessary resources to stop the problem? Are there some type of underlying reasons that our country does not want us to effectively stop it?

    My understanding today: the bi-national elite (US/Mexico) profit off of illegal immigrants and pass the costs and consequences on to the US taxpayers. Those elite have created and institutionalized corporations who not only profit from illegal immigration, but profit from the ineffective enforcement of illegal immigration too.

    Back to border shootings. Border Patrol agents have to shut off common sense , rational thinking and human feelings in order to do their jobs. They know that the vast majority of the people who they catch are honest, hard-working people trying to make better lives for themselves and their families. If these agents can feel at all, they have to feel extreme frustration when one country pushes its poor here, and our country allows those people to be pushed here.

    My disillusion with the above system increased ten-fold once I saw not only a young undocumented kid die, but I saw one of my friends get murdered doing our work.

    Back to border shootings. Ultimately the responsibility lies with the agents who break the rules. What also must be taken into consideration are the conditions created by an entire system of bi-national greed that requires the dehumanization of not only the agents who perform its duties, but the undocumented who are the targets of that system too.

    As with our US soldiers, who can say if the conditions which our government creates and puts our young agents in does not profoundly increase the probability that these young agents might snap?

  • paul on May 07, 2013 9:13 AM:

    Long ago, I watched an interview with a (former) east german border guard who had been involved in shooting at people trying to escape that country.

    One of the things he was very clear on was that it was drilled into all the guards that they only fired parallel to the border, never toward it.

    When you're doing a worse job on the basic human right not to be murdered than East Germany, you've got a problem.

  • smartalek on May 07, 2013 9:46 AM:

    Mr Randolph, thank you both for your service to our country, and for your trenchant analysis here.
    Neither one of them can have been easy for you to perform.
    I wonder if it's occurred to the powers-that-be to put the newbie officers -- especially any that they might have reason to suspect could turn out to be "bad seeds" (and I'd bet a lot that most of the problem-children had been identifiable as such long before any actual incidents) -- on the northern border for a few years' worth of seasoning before deploying them in a territory where preconceived and possibly racist attitudes can have fatal consequences?

  • Dan C. Winters on May 07, 2013 12:03 PM:

    The Border Patrol is part of Immigration and Customs Enforcement (ICE). It is time to melt the ICE by exposing their near unaccountability to civilian due process. They are out of control and can be better described as the

    ILLEGAL CRIMINAL ENTERPRISE (ICE)

  • John A. Randolph on May 07, 2013 12:41 PM:

    To smartalek: I appreciate your thoughtful remarks!

    It is customary (and not necessarily logical) for the USBP to send all new agents to the Southern Border. The Northern Border assignments were considered primo spots for agents who had some time and grade in.

    Thank you again.

  • Sandy MacDonald on May 07, 2013 8:15 PM:

    Unbelievable! Do they think they're in Gaza?

  • Akash on May 07, 2013 10:19 PM:

    Thank you john randolph

  • California Eagle on May 08, 2013 1:59 AM:

    @Dan C. Winters, you got it all wrong. The Border Patrol is not part of ICE, they are part of Customs & Border Protection.

  • John A. Randolph on May 08, 2013 12:11 PM:

    @ California Eagle - both are under DHS - kind of splitting hairs no?

  • JD on May 09, 2013 9:06 PM:

    Mr. Dan Winters should be aware that the Border Patrol is not a part of ICE. It is part of Customs and Border Protection (CBP), as are the Port-of-Entry personnel.
    The third agency that is under the CBP management is the Air and Marine Branch. All are under DHS.

    The Border Patrol has been dumbed down in regards to the initial training. It was for a period of 16-18 weeks, and the standards have been lowered to a bare ten weeks of training. The upper management of the Patrol reassured the patrol Stations that the quality of the Agents would remain high. HAH! To much has been done to diminish the overall quality of standards and training. CBP needs to reinvent the wheel and set those standards and training to the highly acceptable level it once was.

  • ron on May 09, 2013 9:08 PM:

    Yes, ICE is the Federal Agency that patrols and enforces Custom and Immigration Laws inside our Country. The Border Patrol only enforce our Border's.
    However, the Border Patrol can and does arrest illegal immigrant's in our country if they're arrested by other Police Agencies, who notify the Border Patrol to pick them up. It could be this protocol has changed over the years and ICE will control all of the internal
    national control of immigrants, witnessed by recent events in immigration arrests and confinement. ICE is even worse than the Border Patrol in my opinion. They have no scruples when it comes to treating people with decency or kindness. Those hog's are worse than pig's, and should be eliminated by a new Fed. Agency. Too bad that will never happen.

  • Etaoin on May 09, 2013 10:37 PM:

    Why are they shooting at people returning to Mexico? Why are they shooting at people in a sovereign country?

  • jb on May 13, 2013 10:58 AM:

    There is something I don't understand here. Jose Rodriguez was hit eight times??? That's hard to believe, unless the agents were deliberately shooting at him at close range. It's hard to hit people from any distance. Police officers who get into firefights with criminals, even at close range, regularly miss their target 10 or 20 times for every hit. I simply don't understand how it is possible to inadvertently hit someone eight times.

  • West Cosgrove on May 15, 2013 5:01 PM:

    I live in Nogales, Az. Josť Antonio was hit eight times. When the lawyer for his family finally was allowed a copy of the autopsy report, he read that some of the bullets had a trajectory of LOWER TO UPPER. The only way this would be possible is that Josť was already on the ground, face down, and the agent(s) continued to fire bullets into him. I was at the site where he fell and died last week with his mother. Two things struck me, the Border Patrol agents would have been protected by the wall so that rocks would have been thrown up and over the wall. And that it would take a major league baseball player to get a rock over that wall. And as I stood next the cross that now marks the spot where Josť Antonio died, I realized that there are NO ROCKS in the area. None, I could not find a single rock in the area.