Thread: Death of man in Mexico raises constitutional question in U.S.

Death of man in Mexico raises constitutional question in U.S.

mysanantonio.com
By Lynn Brezosky
Sunday, November 25, 2012

This is the grave marker for Mexican resident Juan Pablo Perez Santillán.
Photo: Courtesy Photo / SA

MATAMOROS, Mexico — In a case that could become a legal landmark, the family of a Mexican man who was shot dead from across the Rio Grande in July is seeking justice in U.S. courts.

The family of Juan Pablo Perez Santillán says he was killed by a Border Patrol agent, one of six people shot by agents from the U.S. side since January 2010, according to the American Civil Liberties Union.

The Border Patrol is investigating itself in the July 7 incident but has not acknowledged an agent killed Perez Santillán. It concedes that two agents fired across the river in self-defense that morning.

The gist of his family's argument is that an action that originated on U.S. soil falls under U.S. law, even if the result ended with a death in Mexico. In it and similar cases, plaintiffs' attorneys argue, there was unlawful deadly force that violates protections against unreasonable search and seizure.

The lawsuit comes as civil rights groups are in outcry over 20 deaths and serious injuries by Customs and Border Protection officials in the past few years.

The Homeland Security Department, at the request of 16 members of Congress, is launching an inquiry into its operations.

“There was a time when Border Patrol was not in the jurisdiction of homeland security,” plaintiff's attorney Marc Rosenthal said. “You have the Patriot Act that applies today at this point, and other regulations apply, to put (agents), what you might say, quasi above the law. They're considered more untouchable now.”

Court documents say Perez Santillán, 30, of Matamoros was helping undocumented immigrants swim the narrow international boundary to get to Texas. His older sister, Juanita, says he was cutting twigs for fuel to cook the tamales she and their mother sold by the riverside.

“Shot right through the heart,” his sister said in Spanish, eyes welling. She said witnesses at the scene heard agents shouting, “Let the dog die.”

“I want that there is justice and help to support his children,” she said. “They say that we're animals. But really, on the (U.S.) side, if you kill an animal, they care more.”
Perez Santillán's family is seeking justice in U.S. civil court, under the U.S. Constitution, for monetary damages paid by U.S. federal agencies.

Rosenthal isn't the original lawyer in the case, and he said it's not clear whether Perez Santillán was involved in illegal immigration, although the family's previous lawyer conceded in the court records that he was smuggling immigrants that day.

“Firing a weapon across the border into another sovereign nation is an act of terrorism, irrespective of what the intents and purposes are,” Rosenthal said. “In these circumstances, some people are trying to get into the country. To kill them is illegal; that's murder.”

Customs and Border Protection generally does not comment on pending litigation, though spokespeople repeatedly have highlighted the dangers of being on the line against warring and notoriously ruthless smugglers.

“CBP law enforcement personnel are trained to use deadly force in circumstances that pose a risk to their lives, the lives of their federal law enforcement partners and innocent third parties,” CBP spokesman Michael Friel said.

Assaults against agents reached 1,097 in fiscal year 2008, and since have trended downward as ranks have increased and crime and apprehensions have decreased. There were 555 reported assaults in 2012. Rock throwing against agents declined from 769 reported incidents in 2008 to 249 for the fiscal year ending in September.

“I think you have to look at the context of what's going on there, and there's a lot of violence being perpetrated by people either on the other side of the border or coming across the border,” said Ira Mehlman of the Federation for American Immigration Reform. “Border Patrol agents are out there very often in life-threatening situations. They have every right to defend themselves and defend the people of the United States.”

But human rights groups are alarmed at the number of lives being lost in the name of immigration enforcement.

In Oct. 25 testimony before the United Nations, ACLU policy advocate Brian Erickson spoke of a “misleading national narrative that criminalizes migration” and has led to “extensive abuses and a culture of near impunity.”

The Sept. 11, 2001, terrorist attacks prompted a fast buildup of federal law enforcement on the southern border that critics say led to a loosening of hiring standards and an escalating culture of deadly violence.

One victim was 15-year-old Sergio Hernández-Güereca, who was shot in Mexico by an agent in El Paso. A Justice Department inquiry concluded that agent Jesus Mesa didn't act inconsistently with CBP policy or training. A U.S. district judge dismissed civil cases in the matter against agents and the federal government.

Houston lawyer Bob Hilliard, the attorney in the case, has taken it to the 5th U.S. Circuit Court of Appeals and said he's prepared to take the case to the U.S. Supreme Court. Whether the agent acted in self-defense should be a jury question, he said.
“It can never be that he gets to decide for himself, you know, judge, jury and executioner within 20 seconds.”

“It's just a hole in the constitutional interpretation to date,” he said. “Right now we have literally a venue vacuum that you can step inside of, pull a weapon and murder a Mexican citizen and then you just argue either justifiable homicide, self-defense, whatever you argue.”

“It seems like the default philosophy has been and now has settled into the life of a Mexican is not as valuable as a life,” Hilliard said. “That is the unspoken undercurrent of so much of what's going on on the border. And that slope is so slippery.”
The constitutional question enthralls legal experts.

“The Supreme Court has held that the Fourth Amendment does not apply for actions outside the U.S., and excessive force claims are brought under the Fourth Amendment,” Erwin Chemerinsky, a constitutional law expert at the University of California at Irvine, wrote in an email.

Since the alleged deadly force originated in the U.S., Chemerinsky responded: “That makes it a truly fascinating case and certainly not a situation covered by Supreme Court precedents.”

Michael Steven Green, a law professor at the College of William & Mary Marshall-Wythe School of Law, said the Hernández-Güereca case against the agents could prove easier to get overturned than Boumediene vs. Bush, the landmark Guantanamo detention case in which the Supreme Court sided with detainees.

In 1990, the Supreme Court ruled that Mexican drug defendant Rene Martin Verdugo-Urquidez did not have U.S. constitutional protection in the search of his home in Mexico, Green noted.

“The Guantanamo case suggests that the Supreme Court is more receptive to the extraterritorial application of the U.S. Constitution now, and in any event (these cases) involve actions by the defendants in the U.S.,” he said. “It's an interesting case.”

Death of man in Mexico raises constitutional question in U.S. - San Antonio Express-News

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