Federal Court Will Again Hear Arguments Over Cross-Border Shooting of Sergio Adrian Hernandez Guereca

Ryan J. Farrick — September 21, 2017

Alejandro Alvarez chants as he holds a white cross symbolizing those killed on the border during a protest on June, 22, 2010, across from the Border Patrol station in El Paso, Texas. The protest was held by the Border Network for Human Rights in response to the shooting of 15-year-old Sergio Adrian Hernandez Guereca by a Border Patrol agent. (Mark Lambie / Associated Press) | Image and caption from the Chicago Tribune

A federal appeals court is again hearing arguments over the death of Sergio Adrian Hernandez Guereca, who was shot and killed by a U.S. Border Patrol agent in 2010.

The contentious case could have far-reaching consequences over how liable the United States government is for deaths which take place on foreign soil.

Hernandez, who was only 15 years old at the time of his death, was allegedly partaking in a cross-border game of chicken with his friends.

The youths would dive into ditches, duck close to culverts, and hide behind the pillars lining the heavily-guarded border. According to Hernandez’s friends, the game was only intended as a simple way to get an adrenalin high.

The fun came to an abrupt halt when U.S. Border Patrol agent Jose Mesa happened upon the boys.

Mesa, who was riding a bicycle, began pursuing the teenagers. He purportedly apprehended one, while the rest of the youths began fleeing back toward the Mexican side of the border. Several of Guereca’s friends – and possibly he himself – started throwing rocks at Mesa in retaliation.

Apparently fearing for his life, Mesa drew his firearm and shot at the 15-year old Guereca, who had poked his head out from behind a concrete pillar.

The bullet hit its intended target, and Guereca died shortly thereafter.

Initial attempts made by the boy’s family to file a lawsuit were frustrated, with lower courts saying neither the U.S. government nor its agents could be held accountable for a death which took place on foreign soil – even if Mesa fired the fatal shot from American soil.

Now, for the second time, the U.S. 5^th Circuit Court of Appeals is hearing arguments from the Hernandez-Guereca family and their attorneys.

An earlier decision from the court sided with Mesa.

However, after agreeing to hear the case, the U.S. Supreme Court recommended that the 5^th Circuit Court take a second look.

Two of the most important questions in the case, according to The Washington Post, are whether the family of the young Hernandez – a Mexican national standing on Mexican soil – could claim a violation to the rights of due process under the Fifth Amendment, as well as the right of “people to be secure in their person” under the Fourth Amendment.

The Washington Post also suggested the question of whether Mesa, as an official of the U.S. government, would or should be granted “qualified immunity” from lawsuits.

The Justice Department, which is supporting Mesa and the Border Patrol, said the agent was trying to “stop smugglers attempting an illegal border crossing,” and only discharged his weapon after perceiving an immediate threat to his life.