Illustration by Thovatey Tep
Illustration by Thovatey Tep

Friends dared 15-year-old Sergio Hernández to touch the chain link fence separating Mexico from the U.S., but he didn’t know he would lose his life because of it.

As Hernández sprinted back toward Mexico, he was shot at. The third shot to the head killed him instantly.

That was in 2010, and now the Supreme Court is deciding the case to determine whether or not Hernández’s family will be able to sue the U.S. Border Patrol agent who killed their son. It is unjust for the agent to face no consequences for shooting and killing a Mexican civilian who was unarmed and a non-threat, and the Supreme Court should rule as such.

The children were throwing rocks at the agents as Hernández was fleeing, according to statements from border officials. U.S. Customs and Border Protection (CBP) spokesman Mark Qualia said to CNN lethal force is allowed, “when an agent is in imminent threat of physical or bodily harm, which could cause death or injury or in protection of an innocent third party.”

In order to avoid crossing the border, Jesus Mesa, the U.S. Border Patrol agent who shot Hernández, left the boy without any emergency aid.

Rock throwing, in this case, was considered a dangerous assault. “They’re not chunking [sic] pebbles,” Qualia said to CNN.

These concerns justified “self-defense,” according to Mesa’s lawyer. But the danger posed in rock-throwing isn’t even comparable to lethal force.

U.S. Border Patrol agents are trained to use firearms, but their non-lethal training was lacking at the time, as was training on situations like rock throwing, according to a report issued by the Department of Homeland Security’s Office of Inspector General.

Mesa’s action is one of numerous allegations of excessive use of force by U.S. Border Patrol agents. Other cases include a 16-year-old boy shot 10 times through the border fence in Arizona. In anothor, a man was detained with his hands behind his back, beaten and tasered five times until he died, surrounded by officers at the San Ysidro border crossing.

A three-judge panel of the U.S. Fifth Circuit Court of Appeals in New Orleans decided in 2014 Hernández’s family could sue Mesa.

However, the full Fifth Circuit Court of Appeals  reversed the judgment in 2015, citing Hernández’s family’s lack of constitutional protection as Mexican nationals, as well as Mesa’s legal immunity. This means there is no clearly established body of law barring Mesa from using lethal force on a Mexican national on the other side of the border.

Hernández’s lawyer attempted to use a past Supreme Court precedent to support his case. The precedent states an officer cannot seize an individual by shooting them dead. The Fifth Circuit Court of Appeals overturned the case because Hernández was killed on the Mexican side of the border. This, along with his Mexican citizenship, made it impossible to use the Supreme Court precedent to support his case.

This should be cause for alarm. The Mexico-U.S. border zone poses a unique problem to the implementation of policy. Though constitutional protections may not apply to the Mexican nationals who occupy the territory directly across the Rio Grande, U.S. policy needs to account for the inevitable interactions that will occur between Mexican nationals and U.S. Border Patrol agents.

Now, it is up to the Supreme Court to decide whether or not the Hernández family has any legal jurisdiction in prosecuting Mesa for killing their son.

Should the court decide Mesa’s prosecution is unconstitutional, it would be authorizing cross-border killings without giving Mexican citizens the option of seeking due process. Investigations into use of excessive force would be in the hands of the CBP, which habitually refrains from disciplining agents accused of unlawful conduct.

The ruling could have a profound impact on U.S. foreign relations. If Hernández’s family can sue federal officers from across the border, could the same claims be filed for innocent civilians injured or killed by drone attacks overseas? Such concerns are valid and should be discussed, but they should not be a barrier that prevents Hernández’s family from seeking justice for their son’s death.

If there is no action taken and the law is left undefined, there won’t be a way for Mexican citizens to prosecute border officers for unlawful conduct. Families of victims like Hernández will be unable to take legal action to contest the death of their loved ones.

When it comes to the Mexico-U.S. border zone, the law needs to be explicit and fair. Currently, there is no law. In this gray area, excessive force by U.S. Border Patrol agents goes unchallenged. It is time the CBP is held accountable for its malpractice.

Sixty feet separated Hernández from being considered a constitutionally protected individual. If the Supreme Court rules in Mesa’s favor, it would be allowing those sixty feet to justify Hernández’s death.