As It Happens

'A free killing zone': U.S. top court hears case of teen shot dead in Mexico by American border agent

The border patrol agent was in Texas. The 15-year-old boy was in Mexico. When the agent fired his gun, the bullet crossed the international boundary, killing the teenager. Now the U.S. Supreme Court will decide whether the family has the right to sue.
Maria Guadalupe Guereca, Sergio's mother, cries at her home in Ciudad Juarez Jan. 18, 2011. The U.S. Supreme Court is set to decide whether she and her family can sue the border agent who killed her son in a U.S. court. (Gael Gonzalez/Reuters)

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Denying a Mexican family's request to sue the U.S. border patrol agent who shot and killed their teenage son would be akin to establishing "a free killing zone" at the border, their lawyer says as the case hits the country's top court.

Jesus Mesa Jr. was standing in Texas on June 7, 2010, when he fired his gun across the border, killing 15-year-old Sergio Adrian Hernandez Guereca 18 metres away in Mexico.

When the bullet leaves the gun, it has constitutional consequences.- Robert  Hilliard , lawyer 

U.S. officials chose not to prosecute Mesa and the Obama administration refused a request to extradite him so that he could face criminal charges in Mexico. When Sergio's parents tried to sue Mesa in a U.S. court for violating their son's rights, federal judges dismissed their claims.

The U.S. Supreme Court begins hearing their appeal on Tuesday. The decision could set the precedent for when foreigners can access U.S. courts.

"It simply cannot be the law of this land that the constitution doesn't apply to U.S. law enforcement inside the United States when you're talking about the most fundamental of all rights, the right to life," Robert Hilliard, lawyer for the Hernandez family, told As It Happens guest host Helen Mann.

"When the bullet leaves the gun, it has constitutional consequences."

What if he didn't run?

Precisely what happened in the cement culvert that separates El Paso, Texas, and Ciudad Juarez, Mexico, is in dispute.

Hilliard and Sergio's family say the boy was messing around with friends that day, playing a game in which they ran down the culvert from the Mexican side and up the American side to touch a 5.5-metre fence.

Relatives of Sergio Adrian Hernandez Guereca hold a banner with a picture of him under a railroad bridge connecting El Paso with Ciudad Juarez on June 7, 2012. (Jose Luis Gonzalez/Reuters)

Mesa arrived on a bicycle and detained one person while the others fled back across the culvert. He then shot Sergio as the boy ran toward a pillar supporting an overhead rail bridge. Mesa and other agents who arrived on the scene rode away on their bikes, without checking on the boy or offering medical aid, the family says.

If Sergio Hernandez had been shot before he managed to scamper back to Mexico, he would have constitutional protections.- Robert Hilliard

The Justice Department said Mesa was trying to stop "smugglers attempting an illegal border crossing" and fired his gun after he came under a barrage of rocks.

Video obtained by CNN shows the teenager running away just before Mesa opened fire.

Competing accounts, however, are legally irrelevant to the court's decision, which hinges on whether Sergio had any U.S. constitutional rights on the southern side of the border.

"If Sergio Hernandez had been shot before he managed to scamper back to Mexico, he would have constitutional protections," Hilliard said.

'Aliens injured abroad'

The Trump administration, like its predecessor, is arguing that the location of Sergio's death, in Mexico, should be the end of the story.

The right to sue "should not be extended to aliens injured abroad," the government said in its court filing.

A friend of late teen Sergio Adrian Hernandez Guereca sprays a graffiti reading 'Keko,' Sergio's nickname, in his neighbourhood in Ciudad Juarez June 7, 2012. (Jose Luis Gonzalez/Reuters)

What's more, the government said the parents' claims under the Fourth Amendment, which protects against unlawful search and seizure, should be dismissed because it doesn't apply to non-citizens outside the U.S.

"The executive is saying the border patrol agents do not have to worry about the constitution because they're pointing south, and if they point south, no constitutional constraints, the Fourth Amendment is turned off, and it's a free killing zone," Hilliard said.

Not an isolated case

Sergio's shooting was not an isolated border episode.

Hilliard also represents the family of Jesus Yanez Reyes, a 40-year-old Mexican national who was shot and killed after he climbed a tree just south of the border. When his body fell, it landed directly on the border line, Hilliard said. 

"The position of the litigation by the government is the constitution doesn't apply because more of his body laid outside the country than laid inside the country," he told As It Happens.

Sergio's mother Maria Guadalupe Guereca holds flowers as she poses for a picture at the site where he son was shot dead under a railroad bridge connecting El Paso with Ciudad Juarez. (Jose Luis Gonzalez/Reuters)

Meanwhile, parents of 16-year-old Jose Antonio Elena Rodrigue — killed in Nogales, Mexico, from gunshots fired across the border by a U.S. agent — have also filed a civil rights lawsuit that is being delayed until the Supreme Court rules.

With files from Associated Press

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