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  1. #1
    Senior Member HAPPY2BME's Avatar
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    US Court: Mexicans Can Sue Border Patrol Agent Who Killed Their Rock-Throwing(update)

    US Court: Mexicans Can Sue Border Patrol Agent Who Killed Their Rock-Throwing Son

    Breitbart
    By Sylvia Longmire
    30 Jun 2014




    TUSCON, Arizona--The US 5th Circuit Court of Appeals ruled on Monday that the parents of Sergio Hernandez, a 15 year-old Mexican teenager who was shot and killed by Border Patrol Agent Jesus Mesa on June 7, 2010, could sue Mesa in US civil court for alleged excessive use of force. This was a reversal of the initial judgment made in Mesa’s favor in the lower Western District Court in El Paso, TX.

    Jesus Hernandez and Maria Guereca brought a total of eleven claims against the US government, Mesa, and several Border Patrol supervisors, according to the text of the Appeals Court ruling. The first seven claims were brought under the Federal Tort Claims Act, based on “multiple allegations of tortious conduct,” and the next two claims involved allegations that Hernandez’s Fourth and Fifth Amendment rights were violated. The key claim, however, was that Mesa was liable under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics through his “use of excessive, deadly force.”

    According to the text of the ruling, on the day of the shooting in 2010, Hernandez was allegedly gathered with a group of "friends" on the Mexican side of a cement culvert that separated the Texas border city of El Paso and the Mexican city of Ciudad Juárez. Advocates for the group claim they were playing a game in which they would illegally cross onto U.S. soil, run up to the barbed wire border fence and then run back. Agent Mesa detained one of Hernandez’s friends (the ruling did not explain the circumstances), after which Hernandez retreated behind the pillars of the Paso del Norte international bridge. At some point, Mesa shot at Hernandez from the US side of the border into Mexico, hitting him in the face and killing him.

    On April 27, 2012, the US Department of Justice issued a press release announcing it had closed the investigation into Mesa’s actions, and contained information that was markedly different than the court ruling. Along with several media reports, the release said a group of individuals were attempting to illegally cross the border and were throwing rocks at agents as a diversion. Mesa said he shot Hernandez in self-defense as he was being pelted while attempting to detain a border crosser. The Justice Department investigation revealed that Mesa “did not act inconsistently with CBP policy or training regarding use of force.” Although they couldn’t succeed in criminal court, Hernandez’s parents chose to pursue a lawsuit in civil court instead. Breitbart Texas Managing Director Brandon Darby previously reported how such rock attacks have caused serious bodily injury and risk of death to U.S. Border Patrol agents.

    The 5th Circuit Court ruling affirmed the District Court’s decision that the claims brought against the US government and Border Patrol supervisors should be dismissed, but reversed the dismissal of the claim against Mesa. The Appeals Court stated Hernandez’s parents could assert a claim that their son’s Fifth Amendment rights were violated and they had “alleged sufficient facts to overcome qualified immunity.” According to USLegal.com, qualified immunity “protects public officials from being sued for damages unless they violated ‘clearly established’ law of which a reasonable official in his position would have known.” Furthermore, it “aims to protect civil servants from the fear of litigation in performing discretionary functions entrusted to them by law.”

    The unfortunate precedent this sets for Border Patrol agents cannot be understated. All law enforcement officers are trained to deal with various kinds of threats, but those who work on the southwest border are working under unique conditions and stressors, along with the additional scrutiny that comes with regular interactions with foreign nationals. Few things place an agent’s life in danger more than the hesitation that comes with having to second-guess an action that has been ingrained to come as second nature through training.

    However, this is the side effect of an agent’s concern over being sued for taking defensive action that results in a loss of life. Shawn Moran, Vice President of the National Border Patrol Council, told the Los Angeles Times in June that the union has vowed to oppose any measures that restrict the ability of agents to defend themselves. This was shortly after US Customs and Border Protection issued new use-of-force guidelines for agents, indicating (among many other things) that they should seek cover or move out of range in a rock-throwing incident whenever possible. Agents were also told “not to fire in response unless the projectiles are large enough to cause ‘serious physical injury or death.’”

    As a result of the Appeals Court’s decision, Hernandez’s parents can now pursue a civil suit against Agent Mesa. The Court essentially stated that the Fourth Amendment—under which an excessive force claim is usually made—doesn’t apply to foreign nationals. However, those claims can be asserted as a violation of due process under the Fifth Amendment, which “does not limit the category of individuals entitled to protection,” unlike the Fourth Amendment.

    http://www.breitbart.com/Breitbart-T...lled-Their-Son
    Last edited by Jean; 04-25-2015 at 12:10 AM.
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  2. #2
    Administrator Jean's Avatar
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    Mexican Government Backs Lawsuit Against U.S. Border Patrol Agent

    January 15, 2015
    By
    Joe Palazzolo

    The Mexican government is throwing its weight behind a U.S. lawsuit filed by the parents of a Mexican teenager who was killed in his country when a U.S. Border Patrol agent fired his weapon across the border.

    “When agents of the United States Government violate fundamental rights of Mexican nationals, it is one of Mexico’s priorities to ensure that the United States has provided adequate means to hold the agents accountable and compensate the victims,” lawyers for the Mexican government wrote in a brief filed on Thursday.

    The case marks the first time a U.S. appeals court has considered the legal implications of a cross-border shooting. The question before the New Orleans-based Fifth U.S. Circuit Court of Appeals is whether the U.S. Constitution reaches into the Mexican side of the 2,000-mile border with the U.S.

    The Fifth Circuit ruled 2-1 in June that the parents of Sergio Adrian Hernandez Guereca could sue U.S. Border Patrol Agent Jesus Mesa Jr. for alleged violations of the Fifth Amendment, which provides that “no person shall be . . . deprived of life, liberty, or property, without due process of law.”

    The panel threw out claims against the U.S. government and Mr. Mesa’s supervisors. The Fifth Circuit has agreed to rehear the case, with all active judges participating, at the request of the U.S. government and Mr. Mesa.

    The Mexican government sought to assure the court that it had no qualms about the U.S. Constitution nosing into its territory, in this instance at least.

    “Any invasion of Mexico’s sovereignty occurred when Agent Mesa shot his gun across the border at Sergio Hernández. Requiring Agent Mesa to answer for that action in U.S. court—to the same extent as if Hernández were a U.S. national or on U.S. soil—only shows respect for Mexico’s sovereignty,” the brief said.

    The lawsuit alleges that in June 2010, Mr. Hernández was playing with a group of friends in the cement culvert that separates El Paso, Texas, from Ciudad Juarez, Mexico. The game involved touching the barbed-wire fence on the U.S. side of the border, and then running back down the incline of the culvert into Mexico.

    When Mr. Mesa arrived on the scene, he detained one of Mr. Hernández’s friends on the U.S. side of the border. Still in U.S. territory, Mr. Mesa then shot Mr. Hernández, who had retreated down the culvert back into Mexico, according to the complaint.

    The Federal Bureau of Investigation said after the incident that Mr. Mesa, who is still a member of the Border Patrol, used force because the group was throwing rocks at him, ignoring his commands to stop.

    Randolph J. Ortega, a lawyer for Mr. Mesa, told Law Blog the FBI investigated Mr. Mesa for possible criminal and civil rights violations and found none. He disputed the lawsuit’s contention that Mr. Hernandez and his friends were playing, saying he believed that they were attempting to cross into the U.S. illegally.

    Nicole A. Navas, a spokeswoman for the U.S. Department of Justice, declined to comment on Thursday.

    The U.S. government, in its request for a rehearing, described the Fifth Circuit’s June decision as “unprecedented and irreconcilable” with previous court decisions holding that the Fourth and Fifth amendments generally don’t apply to foreigners outside the U.S.

    The ruling “is exceptionally important because it creates the prospect of personal damages suits for alleged constitutional violations against tens of thousands of U.S. government personnel who operate near that border,” Justice Department lawyers wrote.

    “Any constitutional injury would have occurred in Mexico,” Mr. Ortega wrote separately in an Aug. 28 court brief. “The Constitution does not guarantee rights to foreign nationals injured outside the sovereign territory of the United States.”

    Arguments in the case are scheduled for Jan. 21.

    http://blogs.wsj.com/law/2015/01/15/...-patrol-agent/
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  3. #3
    Senior Member Judy's Avatar
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    Well, this is just another example of Mexico making itself a further nuisance to the United States. Mexico derives from a strange and weird sense of nationality, one that is hard to comprehend. On the one hand, they want to cheer about their nation and history, which is fine, and tend to be a very proud people, yet they grovel on and over our borders, demean themselves signing up for welfare, run most of the drug trade and smuggling operations, whine all day and night about the right to leave a country they supposedly love to be here in a country we know they hate, abandon a heritage they want to preserve and boast about, and run all types of criminal schemes and plots to steal money out of the US economy to dump into theirs when they aren't there to enjoy the benefits.

    A truly strange people indeed. So for Americans of Hispanic and Latino descent, I would strongly suggest you put considerable distance between yourselves and illegal aliens from Mexico, because they are not bringing anything to your tables, only plotting and scheming to take what you already have from yours.
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  4. #4
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    Court: Family of teen shot across border can't sue in US

    Friday, April 24, 2015
    By:
    Associated Press

    NEW ORLEANS — A U.S. Border Patrol agent who killed a teenager when he fired across the border from Texas into Mexico cannot be sued in U.S. courts by the Mexican teen's family, a federal appeals court ruled Friday.

    The unanimous ruling was issued by the full 5th U.S. Circuit Court of Appeals, reversing most of an earlier 2-1 ruling by a three-judge panel of the court. The border agent's lawyer said the opinion vindicated his client.

    An attorney for the teen's family said they haven't decided whether to appeal to the U.S. Supreme Court.

    "We leave for others to decide whether this court has lost its moral bearings," attorney Marion Reilly said in a written statement. "On behalf of the parents of an innocent slain teenager — a human being, regardless of his nationality — we simply note that they and we had not expected such a decision from a court of the United States."

    U.S. Border Patrol agent Jesus Mesa Jr. shot 15-year-old Sergio Adrian Hernandez Guereca in June 2010. U.S. investigators said Mesa was trying to arrest immigrants who had illegally crossed into the country when he was attacked by people throwing rocks. Mesa fired his weapon across the Rio Grande, twice hitting Hernandez Guereca.

    The shooting occurred near a bridge between El Paso, Texas, and Ciudad Juarez, Chihuahua

    Originally the family's lawsuit was filed in U.S. District Court, where a judge ruled that they couldn't sue in the U.S. because the shooting's effects were "felt in Mexico." The three-judge panel of the 5th Circuit later held that Mesa could be sued, but Friday's decision by the full court overturned that finding and upheld the district judge.

    The full court rejected the family's contention that Mesa's immunity from a civil suit was overcome by the U.S. Constitution's Fourth Amendment, which guarantees the right of "the people to be secure in their persons," or by Fifth Amendment protections against deprivation of life without due process of law.

    A Fourth Amendment claim cannot be asserted by a Mexican citizen on Mexican soil with no significant connection to the United States, the appeals court ruled.

    While there were differing rationales expressed in concurring opinions on whether Mesa violated Hernandez's Fifth Amendment rights, the court was unanimous in concluding that such rights could not have been clear to the agent. "No case law in 2010, when this episode occurred, reasonably warned Agent Mesa that his conduct violated the Fifth Amendment," the unsigned majority opinion said.

    Hernandez Guereca's family disputed that.

    "It is common ground, and the court does not deny, that the agent knew that it would have been wrong to kill a U.S. citizen who was standing in Mexico," Reilly's statement said. "So the court has ruled that it was appropriate for the agent to kill an unarmed teenager based on his nationality — don't kill him if he is a U.S. citizen, but fire away if he is a Mexican."

    Mesa's attorney, Randolph Ortega, said "we're very happy" with the ruling. Noting that the 5th Circuit's ruling was unanimous, Ortega said he doubted the U.S. Supreme Court would take up the case if Hernandez Guereca's parents pursued an appeal.

    In the earlier, three-judge panel opinion, judges Edward Prado and James Dennis had held that the teen's family could assert Fifth Amendment rights. They did not dissent in Friday's opinion and Prado agreed in a concurrence.

    "I agree with the en banc court's holding that the constitutional rights asserted by 15-year-old Sergio Hernández and his family were not clearly established in 2010, when Agent Mesa fired his fatal shots across the international border," Prado wrote.

    Although it was unclear whether further appeals of the teen's case will be pursued, Prado added that it will be up to the Supreme Court "to provide clarity ... on the extraterritorial reach of constitutional rights."

    http://www.bostonherald.com/news_opi...cant_sue_in_us
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  5. #5
    Senior Member Judy's Avatar
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    Well, I hope this is the end of that.
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  6. #6
    Senior Member vistalad's Avatar
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    I guess the Appeals Court in not into theater of the absurd.
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  7. #7
    Senior Member Judy's Avatar
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    Quote Originally Posted by vistalad View Post
    I guess the Appeals Court in not into theater of the absurd.
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    American jobs for American workers

    Fair trade, not free trade
    Exactly. Lets hope it sticks.
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