Alex Mills ‘17
When I first stumbled upon the Hernandez v. Mesa case, which appears before the Supreme Court this month, I felt a range of emotions: disgust at the unnecessarily violent actions of border patrol agent Jesus Mesa, empathy for the Hernandez family and frustration at the legal system that denied and seemed to circumvent the obvious accountability of Mesa. Unfortunately, one emotion I did not feel was surprise; the deaths of Eric Garner, Trayvon Martin and hundreds of others have made the deaths of innocent civilians at the hands of law enforcement seem distressingly predictable. Yet the nuances of the Hernandez case shed much-needed light on just how far the American legal system will go to shield law enforcement officers from their own culpability.
The background of the case is as follows: in early June, 2010, Sergio Hernandez Guereca, a 15-year-old Mexican national, was playing with a group of friends on a segment of the Rio Grande, which separates El Paso, Texas from Juarez, Mexico. Their fun was cut short by the arrival of border patrol agent Jesus Mesa, Jr. who immediately detained one of Hernandez Guereca’s friends while he fled, hiding across the river. Hernandez Guereca sought refuge behind the pillars of the Paso del Norte Bridge when Mesa, still firmly planted in Texas, fired two shots in Hernandez Guereca’s direction, one of which struck him in the head and killed him.
Roughly six months after the boy’s death, his parents sued Mesa in federal district court, arguing that Mesa’s actions had been unconstitutional under the Fourth and Fifth Amendments because he had used unreasonable force when making arrests. Originally, because the death took place in Mexico, Mexican officials requested that Mesa be extradited to Mexico where he could be tried under their national law. The Obama administration refused.
In court, Mesa and his legal team argued that Hernandez Guereca lacked constitutional protection, claiming that because Hernandez Guereca was an alien and was in Mexico when he was killed, Mesa’s action was legally blameless. Most shockingly, the district court, relying on a formalist test, concluded that the Constitution’s deadly-force protection clause stops at the border for non-citizens. In practice, this raises questions such as those articulated by lawyer Elie Mystal, who asks, “Can a U.S. border patrol agent stand at the boundary between the United States and Mexico and use Mexican children as target practice?”
If the above question makes you uncomfortable — as it should — then you are not alone. The Hernandez family’s legal team appealed to the Fifth Circuit of the U.S. Court of Appeals, which continued to assert that they could not sue Mesa under the Fourth Amendment because of Hernandez Guereca’s Mexican citizenship, his lack of voluntary connection to the U.S. and the fact that he was on Mexican soil when the crime occurred.
Randolph Ortega, a lawyer representing Mesa, claims that the U.S. Constitution should not extend past the midpoint of the Rio Grande, directly between the U.S. and Mexico. In regards to the application of the unreasonable force clause, he asks sardonically: “How far does it extend? Does it extend 40 feet? As far as the bullet can travel? All of Juárez, Mexico? All of the state of Chihuahua, Mexico? Where does the line end?” Adding flame to a steadily burning fire, Ortega hints that a ruling that favors Hernandez would cause problems for the U.S. by increasing the number of foreigners suing over drone attacks, a position that completely disregards the idea that foreigners may be entitled to recourse from such attacks.
This case is compelling not only for the questions it raises about the specific kinds of protections our country is legally obligated to provide for non-nationals, but is also relevant in light of the U.S.’s increasingly contentious relationship with Mexico under the Trump administration. What is perhaps most disturbing about this case is not the actions of Mesa himself but the potential precedent it will set. If Mesa can shoot an unarmed teenager without consequences, this means that other border patrol agents can as well. America under the Trump administration has become increasingly hostile to minorities, and the Supreme Court’s decision regarding Hernandez Guereca’s death will determine if those who live along the border are destined to become more vulnerable.