The Supreme Court heard arguments today in the case of a U.S. Border Agent who killed
a 15-year-old boy named Sergio Hernandez Guereca.
But the case isn’t about the victim.
It’s about how the Constitution treats the 60 feet between Hernandez and the man who killed him.
This video, from June of 2010, captures a shooting that has vexed American courts for years.
The video shows U.S. Border Patrol agent Jesus Mesa as he points his gun and fires,
striking Sergio Hernandez in the head and killing him.
The agent says Hernandez was part of a group of boys that was throwing rocks at him,
but Hernandez’s family later used this video to argue that their son posed no threat to the agent
and that the killing was unjustified.
This shooting happened on a dry, concrete stretch of the Rio Grande.
Here, between the cities of Juarez and El Paso, the border runs unmarked down the middle of the river.
Even though Sergio Hernandez and Jesus Mesa were only 60 feet apart,
they were standing in different countries.
Mexican authorities tried to prosecute Agent Mesa for murder, but the U.S. wouldn’t turn him over.
And when Hernandez’s parents sued in the U.S., the case wound up going all the way
to the Supreme Court, where the question is whether the American Constitution can protect
a Mexican citizen standing on Mexican soil.
And if it doesn’t, what law governs this particular no-man’s-land?
Maria Guadalupe Guereca, Hernandez’s mother, took us to the scene of the shooting.
— The lawsuit over Hernandez's death has been crawling through the American courts for almost seven years.
It was tossed out by a trial judge, then by the 5th Circuit, until the Supreme Court agreed to hear it last fall.
Lawyers representing Mesa, the Border Patrol agent, say he acted in self-defense while patrolling
a section of the border used frequently by smugglers and other criminals and that there are other videos,
not seen by the public, that bolster his case.
They also say Border Patrol had arrested Hernandez twice for human smuggling.
But the family says the Border Patrol has produced no evidence of their son’s alleged arrests.
The Supreme Court will not consider the details of the shooting, or Hernandez’s background,
only whether the family has the right to sue under the U.S. Constitution.
Bob Hilliard, an attorney from Corpus Christi, Texas, is representing the Hernandez family in Washington.
It’s his first time arguing before the Supreme Court.
— The bullet, when it leaves the gun, has constitutional consequences.
Yet that same bullet, halfway to Sergio’s head, is stripped, if you believe the government,
of all constitutional consequences when it crosses the invisible line.
— Beyond expanding the scope of the Constitution,
the Supreme Court’s decision could also apply a new level of scrutiny to the Border Patrol,
scrutiny some say is sorely needed.
The Hernandez shooting was not an isolated incident.
An investigation by the Arizona Republic into killings by the Border Patrol documented
six fatal cross-border shootings since 2010.
And, in a brief before the Supreme Court,
a group of former Customs and Border Protection officials say that agents are too quick to use fatal force.
We reached out to Customs and Border Protection for comment, but they declined—citing pending litigation.
— I was brought to CBP with a mission to hold the Border Patrol accountable.
— Jim Tomsheck, who ran internal affairs at Customs and Border Protection,
says he was forced out of the agency for aggressively pursuing investigations into excessive use of force.
Shortly after the shooting, CBP and the Justice Department absolved Mesa of wrongdoing,
which Tomsheck says was part of a coverup.
— From the onset, I had deep concern that there was an effort on the part of the Border Patrol and
CBP leadership to conceal the facts surrounding the death of Sergio Hernandez.
— The case now before the Supreme Court, depending on the outcome, what do you think is at stake?
— The consequence of a ruling against the Hernandez family, I think, is one to embolden Border Patrol agents,
who are already predisposed to excessive use of force, to believe it’s open season on persons at the border.