5th Circuit upholds Border Agent's Self-Defense

Court: Mexican family can’t sue agent in cross-border death

Originally published March 20, 2018 at 3:59 pm Updated March 20, 2018 at 4:25 pm
Kevin McGill

NEW ORLEANS (AP) — A U.S. Border Patrol agent who fired his gun in Texas and fatally wounded a teenager across the Mexican border in 2010 cannot be sued by the teen’s family, a federal appeals court ruled Tuesday, in a ruling that cited diplomatic and national security concerns.

The 5th U.S. Circuit Court of Appeals ruled in the case of 15-year-old Sergio Adrian Hernandez. He was killed by agent Jesus Mesa in 2010. The Justice Department has said Mesa was trying to stop illegal border crossings and fired after he came under a barrage of rocks.

The appeals court voted 13-2 to uphold a federal district judge’s dismissal of the family’s claims. The case involved questions of whether and when constitutional rights afforded American citizens extend to non-citizens outside the nation’s boundaries.

The opinion was the latest in a complicated trip through the legal system. After the district judge dismissed the case, a divided three-judge 5th Circuit panel partially reversed the decision, allowing the suit to progress. The full 5th Circuit re-heard the case and sided with Mesa. But the appeals court was ordered to hear the case again by the U.S. Supreme Court.

• The high court said the issues should be re-examined in light of its 6-2 decision in a case known as Ziglar v. Abbasi, which said that Muslim men detained in harsh conditions in a Brooklyn jail after the Sept. 11 attacks can’t sue top U.S. law enforcement officials.

Both sides in the Mesa case argued that the details in the Abbasi case bolstered their respective arguments.

Tuesday’s majority opinion said the dismissal stands, and that the case raises national security concerns in that border agents might hesitate to make split-second decisions in dangerous situations if they believe they might face lawsuits.

Extending the right to sue in the Hernandez case “would interfere with the political branches’ oversight of national security and foreign affairs,” Judge Edith H. Jones wrote for the majority. “It would flout Congress’s consistent and explicit refusals to provide damage remedies for aliens injured abroad. And it would create a remedy with uncertain limits.”

https://www.seattletimes.com/nation-world/court-mexican-family-cant-sue-agent-in-cross-border-death/