A United States court has all but declared open season on Mexican nationals along the US-Mexico border. Border patrol agents may shoot foreign nationals in Mexico with impunity – provided that those at whom they aim are standing within feet of US territory.
According to a ruling by the US Court of Appeals for the Fifth Circuit last week, agents who shoot and kill people in Mexico while standing on US soil will never be held to account, except before their administrative agencies. No court will ever review these actions and the families of the victims will be left with no avenue for justice. An agent’s actions will not be governed or restrained by the constitution nor subject to review by US courts.
This isn’t a hypothetic situtation: all of this has already happened.
On 7 June, 2010, a US border patrol agent shot and killed a 15-year-old Mexican boy, Sergio Hernandez, who was standing on the Mexican side of the border. The border patrol agent who drew his firearm and shot Hernandez twice, including a fatal shot to the head, alleged that the boy had been throwing rocks.
After three days on administrative leave and an administrative review of his actions, the agent returned to his duties. No criminal charges were filed, and the United States has refused to extradite the agent to stand trial for murder in Mexico.
Left with no other recourse, the family and their attorneys brought a suit in 2011 in federal court alleging a violation of Hernandez’s Fourth and Fifth Amendment rights under the US constitution. The district court dismissed the suit, stating that the US constitution does not apply to Mexican nationals with no “voluntary connections” to the United States. The family appealed to the US Court of Appeals for the Fifth Circuit and, in a unanimous decision issued on 24 April, the court upheld the position that the Fourth Amendment did not apply and that Hernandez’s claim to the Fifth Amendment – the right not to have his life arbitrarily taken by the state without adequate due process of law – was not “clearly established”.
Had this been any other type of shooting by law enforcement, the case would have been referred to a grand jury, at the very least – though, many local law enforcement agencies also face scrutiny by the US Department of Justice for their use of excessive force and discrimination against minorities.
In light of this ruling, there will be no involvement of our courts in determining whether there was excessive force when an armed border control agent shot a 15-year-old boy in the head. Instead, any review will be shrouded in secrecy and will be conducted by the same individuals who supervise and direct these types of actions and set policy.
Hernandez’s shooting is not an isolated incident: according to the Washington Times, there have been 43 cases since 2010 involving the use of deadly force by agents, resulting in 10 deaths along the border.
The reason that we have separation of powers is to prevent these types of abuses by one branch of government by holding it accountable to the other branches. Apparently, the courts are now willing to abdicate this responsibility when the individual is a foreign national standing on his home soil – even where that individual is a child. People like Hernandez and my clients shouldn’t have to crawl across the border in order to receive justice.