Will the Supreme Court Rein in Border Patrol?

click to enlarge Will the Supreme Court Rein in Border Patrol?
U.S. Customs and Border Protection
The family of 15-year-old Sergio Hernandez says it was like a game of chicken, border-town style.

They say Hernandez and his friends were playing near the Paso del Norte Bridge, which stretches into downtown El Paso, on June 7, 2010, daring each other to run and touch the fence on the north end of drainage culvert that divides the United States and Mexico. U.S. Border Patrol Agent Jesus Mesa claims he was responding to reports of smugglers at the port of entry. The FBI, which investigated the case, later concluded that some rock-throwing kids "surrounded" Mesa as he tried to arrest two of them.

Yet grainy videos of the incident, captured by a witnesses looking on from Mexico, show Hernandez hiding behind a pillar underneath a train trestle before he peeks his head out. That's when Mesa pointed his gun across the border and squeezed off two rounds, one of which struck Hernandez in the face.

As U.S. Supreme Court Justice Sonia Sotomayor put it this week when the case went before the High Court, "I can't square the police officer's account of this incident with that film."

But on Tuesday, the Supreme Court wasn't asked to determine whether Mesa was justified in shooting an unarmed teenager in the face, but rather if the kid's surviving family even deserves a day in court to prove that he clearly wasn't. That's because, while Mesa was standing on U.S. soil when he fired his gun, the boy he shot was just a few steps inside Mexico when the bullet killed him. Hernandez's family has asked the Supreme Court to reverse a lower court's ruling that tossed the case because Hernandez was a Mexican citizen who died in Mexico — even though it was from a bullet fired by law enforcement in the United States.

It's a case that government watchdogs and former border officials say could have sweeping implications on how the nation's largest civilian law enforcement agency polices the border. Ahead of arguments in the Hernandez case this week, two former top officials with U.S. Customs and Border Protection filed a legal brief arguing inadequate training and shoddy oversight have led to an agency that operates with impunity.

"Sergio Hernández should not have been killed," they write. "But because of conditions within the Border Patrol, similar incidents will likely continue to occur if agents cannot be held accountable in civil suits." They call CBP an agency "plagued by corruption, misconduct and excessive force incidents."

The issue's taken on new urgency due to the rapid expansion of agents along the southwest border — which, if President Donald Trump follows through on promises to further beef up border security, will surely continue in the coming months and years. From 2001 to 2011, Border Patrol more than doubled boots on the ground to 21,000 agents, resulting in, according to some former CBP officials, both an increasingly militarized border and an agency that couldn't keep up with itself. By 2007, an internal review by the Government Accountability Office already showed CBP was struggling to provide adequate supervision and training for its field agents.

That included how to respond to so-called "rock attacks" at the border. Mesa is not the only agent who's responded to rocks with gunfire in recent years. Hernandez's lawyers say that there have been 10 cross-border shootings like his in recent years. An independent report commissioned by CBP in 2013 showed that, over the course of just two years, agents shot at alleged rock throwers on the border 67 times, resulting in 19 deaths.

In that 2013 report, by the Police Executive Research Forum, CBP was criticized for a "lack of diligence" in investigating agents who fired their weapons. In response to the report, the agency tried to suppress it. Yet another report later that year by the U.S. Department of Homeland Security Office of Inspector General concluded similarly that "many agents and officers do not understand use of force and the extent to which they may or may not use force."

Which might explain why there's no shortage of cases alleging stomach-turning abuse by border guards and customs officers in recent years. Like the case of Laura Mireles, a U.S. citizen who was stopped by a border agent in November 2012 as she was leaving her job at the duty free store near the Brownsville port of entry. Mireles claims the agent threw her to the floor with enough force to rip her jeans, pinned her to the ground, and then cuffed her wrists so tightly the fire department had to be called in to remove them. The next day she had a miscarriage, which her gynecologist blamed on the encounter with the border agent the day before.

Last year, the feds settled a lawsuit the ACLU of Texas had filed on Mireles' behalf for $85,000. It wasn't even the first time that year the feds had to settle a case because of heavy-handed treatment by border guards in Texas. Months earlier, the ACLU had secured a record half-million dollar settlement with the feds over the case of a New Mexico woman stopped at the El Paso port of entry and then subjected to a series of invasive searches — including strip-searches, genital exams, and even a trip to the local hospital, where over the course of six hours agents forced the woman to undergo "an observed bowel movement, an X-ray, a speculum exam of her vagina, a bimanual vaginal and rectal exam, and a CT scan," all without her consent or a search warrant.

To lawyers in the Hernandez case, equally troubling are the many instances in which CBP seems uninterested in evidence or witness statements that contradict an agent's account of a cross-border shooting. Like the case of Anastacio Hernandez Rojas, who in May 2010 tried to cross the border into San Diego, where he'd lived for 25 years and fathered five children. The agents Hernandez Rojas encountered initially claimed he was hostile and resisted arrest; eyewitness video of the encounter, however, shows he was handcuffed on the ground, surrounded by a dozen or so officers and calling for help when agents beat and tased him to death. In 2015, the feds cleared the agents of any wrongdoing.

Same goes for the agent who shot and killed Juan Pablo Perez Santillan in July 2012 as he stood on the Mexico side of the Rio Grande, helping guide immigrants swimming toward Brownsville. CBP won't release the name of the agent who shot him five times from across the river using a high powered scope (the agent reportedly thought he saw a gun; Perez was only holding a sweat rag). Perez's brother swam back to shore and found him lying in a pool of blood. According to the lawsuit his family filed, when he yelled for help, one agent responded, "que se muera el perro." Let the dog die.

Two months later, a border agent in a patrol boat shot and killed Guillermo Arévalo Pedraza while he was picnicking with family on the banks of the Rio Grande in Nuevo Laredo. Likewise, those agents involved faced no discipline or charges. Then, the following month in Nogales, Mexico, 16-year-old José Antonio Elena Rodriguez was walking along a main thoroughfare near the Arizona border fence when he was shot ten times, mostly in the back. Border Patrol Agent Lonnie Ray Swartz claimed he was firing at rock throwers; Mexican investigators say he must have unloaded his service weapon, reloaded and then kept firing. In some ways, the case is an outlier — three years after the shooting and one lawsuit later, the feds filed a second degree murder charge against Swartz (he's pleaded not guilty; a trial is pending).

The lawsuit against Swartz, however, remains in limbo until the Supreme Court makes a decision on the cross-border shooting case it heard this week.

While Mesa faces no criminal charges in the United States for shooting and killing Hernandez, officials in Mexico indicted him for murder in the 2010 shooting. American officials have refused to extradite him, meaning a civil case is his surviving family's only and last resort.

At the Supreme Court Tuesday, Mesa's attorney, Randolph Ortega, argued that the border constitutes a sort of constitutional on-off switch. "The border is very real and very finite," he said. "It’s not elastic."

That reasoning seemed to tax the patience of justices across the ideological spectrum. "I don’t understand all this about Mexico," said Justice Ruth Bader Ginsberg. "It’s the United States law operating on the United States official who’s acting inside the United States. This case, as far as the conduct is concerned, has United States written all over it."

Chief Justice John Roberts seemed troubled that the case before the court hinges not on the conduct of the agent, but rather the geographical location where the boy died. Or, as he put it, "It’s odd to say the officer’s conduct is reasonable so long as it turns out the victim, you know, is – is Mexican, but it’s unreasonable if the exact same conduct and it turns out the victim is American."
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