Hernandez v. Mesa: Who Will Watch The Watchers?

By Clarissa Alvarez

Clarissa Alvarez is a sophomore at The George Washington University studying political science and economics.

As a native of bordertown Laredo, Texas, I am often surprised by how little others know about the borderlands, and those who do mention it often bring up common misconceptions. For example, there’s the popular misconception that bloodshed and violence is commonplace along the U.S.-Mexico borderlands. While that may be true for Mexican border towns, the opposite is most accurate for U.S. towns along the U.S.-Mexico border. In fact, U.S. border cities tend to be some of the safest regions in the U.S. Law enforcement ranging from the local police department and Border Patrol to the FBI, DEA, Texas National Guard, and ICE tend to be overly present. Though, that may well be because U.S. border cities sit across what have been labeled as some of the most murderous cities in the world.

Geography and landscape differ from border state to border state. Some sister cities are separated by a wall, while others are separated by natural barriers like the Rio Grande River that runs along the Southern Texan border. To alleviate border security issues, a large influx of law enforcement is present along the edge of the U.S. border checkpoint, acting as a militarized-like zone. On the Mexican side of the border, people have get-togethers and parents throw their children small birthday parties along the narrow area of land beside the Rio Grande. Children jump into the Rio Grande and playfully splash water at each other, their parent’s watchful of their children, constantly reminding them to not go as far as to accidentally cross into the U.S. and attract Border Patrol attention. People on the U.S. side of the border generally do not want to know what happens, and they shut their eyes to the mishaps that occur on the Mexican side of the border. As famously said by a previous Mexican President Porfirio Diaz, “Poor Mexico, so far from God and so close to the United States.” For U.S.-Mexico border cities that share a culture, there are evident political parallels and intersections between both countries.

Among all of the current and potential issues concerning the U.S.-Mexico border and U.S.-Mexico relations, there is one that has garnered scant international attention. That issue being Border Patrol agents using excessive force leading to the death of innocuous Mexican nationals. The ongoing Hernandez v. Mesa case consists of a Border Patrol agent, Jesus Mesa Jr., involved in a cross-border shooting of an unarmed 15-year-old Mexican national--Sergio Hernandez Guerec. In 2010, Sergio and a group of friends dared each other to touch the American border fence; however, Border Patrol Agent Mesa claims that he believed they were trying to cross to the American side of the border. Border Agent Mesa was able to grab one boy, but Sergio managed to run back to Mexico before Mesa fatally shot him in the head from the U.S. side of the border. Six months after Sergio’s death, the Hernandez family filed a suit against Agent Mesa in a Texas federal district court, alleging that Mesa violated the Fourth and Fifth Amendments of the U.S. Constitution by using excessive and unreasonable force when making apprehensions. [1] Mesa claimed that the boys had been throwing rocks at him and acted in self-defense; however, a bystander's video footage shows Hernandez running away and hiding. The U.S. Court of Appeals for the Fifth Circuit ruled that Mesa was entitled to qualified immunity since the agent was unaware of the victim's legal status, and that Hernandez could not assert a claim under the Fourth Amendment. Sergio Hernandez lacked constitutional protection for being an “alien without voluntary attachments to the Unites States, and for not being killed on U.S. soil.” [2] The Hernandez family decided to take the case to the U.S. Supreme Court who has agreed to review the decision made by the Fifth Circuit that granted Agent Mesa qualified immunity. The Hernandez family is hoping for a potential overturn of the Fifth Court’s ruling that would allow them to legally sue Agent Mesa. In retrospect, the rights that the Hernandez family is seeking are similar to those given to foreign prisoners at Guantanamo Bay who are protected by U.S. law despite being detained in Cuba. [3]

Unfortunately, similar cases have occurred on multiple U.S.-Mexico border checkpoints. According to the U.S. Customs and Border Protection Agency (CBP), from January 2010 to October 2012, 67 cases had been filed related to CBP agents use of deadly force. [4] Cases of the sort are not uncommon, yet many agents have been granted immunity under very controversial circumstances, as it has been under the Hernandez v. Mesa case. Firearms should be used for defensive purposes, not to stop and fatally shoot a boy running away. Must not Border Patrol ensure the safety of all individuals and be held accountable for excessive force? That may be so, but it seems that Mesa’s bullet was not enough of a connection, though it cannot be ignored that the victim’s legal status also played a part in the failure to prosecute Agent Mesa.

Yes, having a secure border is important--a point that was often stressed during President-elect Trump’s presidential campaign. It is yet unclear whether President-elect Trump will actually go through with his campaign promises concerning illegal immigration and border security policy; however, it can only be assumed that he is actively considering multiple options such as an increase in border patrol agents, building “the wall,” and using “the best technology to find and dislocate tunnels and keep out criminal cartels,” which experts say will take years to develop and fully-implement. [5] Since 2006, the Border Patrol force has nearly doubled to more than 21,000 agents. [6] Under a Trump Presidency, that number will more likely than not increase, if not grant greater authority for border agents. In fact, approximately 150 border agents have already been transferred to South Texas after witnessing an increase in immigrants (mostly Central Americans fleeing from violent gangs and poverty-stricken neighborhoods) being apprehended for attempting to illegally cross into the U.S. A looming but nearly definite Trump Presidency coming January 2017 has led to an increase in Central American migrants fleeing to the U.S. Some migrants selling all of their belongings and paying guides extremely high prices in fear that Trump will only make it harder to cross into the U.S. as his presidency nears. Statistics show that when officers wear body cameras, the use of force plummets 50%. [7] A comprehensive employer verification system and the inclusion of body cameras on border agents instead of just employing more border agents could deteriorate the current issue. Failure to prosecute Agent Mesa will set a dangerous precedent for the degree of force border agents are authorized to exert. Cases of the sort should fall under the International Human Rights System, which holds the individual accountable for violations of human rights or international criminal law.

[1] "Hernandez v. Mesa." Oyez: Chicago-Kent College of Law at Illinois Tech. December 5, 2016.
https://www.oyez.org/cases/2016/15-118
[2] Ibid
[3] Liptak, Adam. “An Agent Shot a Boy Across the U.S. Border. Can His Parents Sue?” The New York Times. October 17, 2016. http://www.nytimes.com/2016/10/18/us/politics/an-agent-shot-a-boy-across-the-us-border-can-his-parents-sue.html?_r=0
[4] “U.S. Customs and Border Protection-Use of Force Review: Cases and Policies.” The Police Executive Research Forum. February 2013. https://www.cbp.gov/sites/default/files/documents/PERFReport.pdfhttp://thehill.com/blogs/congress-blog/civil-rights/272403-body-cameras-on-border-patrol-agents-could-save-lives
[5] Nixon, Ron. “As Donald Trump Calls for Wall on Mexican Border, Smugglers Dig Tunnels.” The New York Times. September 1, 2016. http://www.nytimes.com/2016/09/02/us/us-mexico-border-wall-tunnels.html?_r=0
[6] Childress, Sarah. “Few Answers on Border Patrol Agents’ Use of Force.” PBS:FRONTLINE Enterprise Journalism Group. September 20, 2013.
http://www.pbs.org/wgbh/frontline/article/few-answers-on-border-patrol-agents-use-of-force/
[7] Rios, Pedro. “Body cameras on Border Patrol agents could save lives.” The Hill. March 10, 2016. http://thehill.com/blogs/congress-blog/civil-rights/272403-body-cameras-on-border-patrol-agents-could-save-lives

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