Fifthe Circuit reverses ruling that allowed Mexican national to sue Border Patrol agents

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Fifthe Circuit reverses ruling that allowed Mexican national to sue Border Patrol agents

jlopez
Several journals and news media are reporting that the 5th Circuit Court of Appeals has reversed an earlier three judge panel that had ruled that a Mexican national could sue a Border Patrol agent for shooting and killing a Mexican national standing on the Mexican side. BB readers will remember that the 5th Circuit, in a three-judge panel, had ruled that the Border Patrol could be sued under those circumstances. Yesterday, the full 5th Circuit reversed the earlier opinion and ruled that a Border Patrol officer is immune from prosecution.

There are too many articles on several media to cite here, but the Lexis Nexis summary, authored by Daniel M. Kowalski, is probably the most concise: www.lexisnexis.com/legalnewsroom/immigration/b/newsheadlin...

This case involved the shooting of a Juarez teenager, Adrian Hernandez Guereca, by Agent Jesus Mesa Jr. in June 2010. BB readers will recall that the Juarez teenager was standing behind a pillar on the Mexican side a few yards from Agent Mesa when Mesa shot him in the face. In relevant part, (quoting from the LexisNexis article) the 5th Circuit held that Hernandez could not sue because he was a Mexican citizen, on Mexican soil and had no "significant voluntary connection" to the U.S. The Court said, among other things, that any right Hernandez had as a foreign national would not have been clear to Mesa at the time of the shooting: "No case law in 2010, when this episode occurred, reasonably warned Agent Mesa that his conduct violated the Fifth Amendment," the court wrote.

So, in short, Border Patrol agents have qualified immunity and cannot be held liable when they shoot Mexicans across the border. This is because, according to the Fifth Circuit Court of Appeals, U.S. Border Patrol agents cannot reasonably be expected to know that Mexican nationals have rights.

Being a cynical person, I long ago concluded that the main purpose for the law is to keep justice and reality from ever meeting. Who knows what might happen.  

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Re: Fifthe Circuit reverses ruling that allowed Mexican national to sue Border Patrol agents

canadiana
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What about these 2 scenerios;1.an American gets shot by a Mexican border agent-Can he sue Mexican government?2.a Mexican gets shot by a Mexican border agent-Can he sue Mexican government?Highly unlikely when the shoes on the other foot.Maybe if Mexico played by US rules eh?
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Re: Fifthe Circuit reverses ruling that allowed Mexican national to sue Border Patrol agents

ThinkTank
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Re: Fifthe Circuit reverses ruling that allowed Mexican national to sue Border Patrol agents

jlopez
That's pure bullshit. No need to explain further.
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Re: Fifthe Circuit reverses ruling that allowed Mexican national to sue Border Patrol agents

ThinkTank
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Re: Fifthe Circuit reverses ruling that allowed Mexican national to sue Border Patrol agents

aguiniga12
DHS does have over a billion bullets at their disposal--they need to get their target practice in somewhere... /s
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Re: Fifthe Circuit reverses ruling that allowed Mexican national to sue Border Patrol agents

jlopez
In reply to this post by ThinkTank
Because I am kind, considerate and patient, I will explain why I called your comment pure bullshit. You said:

"Justice and reality met in June of 2010. You dont (sic) throw rocks at armed soldiers. Try that in Mexico and see how you fare. There wont (SIC) even be a news story."

First, the case did not involve throwing rocks at a soldier. Border Patrol agents, indeed all law enforcement agents employed by state of federal governments, are civilians. So you injected a "fact" into the discussion that was simply not in the record, either in the comments I posted or in the ruling issued by the Circuit Court. If you read the opinion itself or the synopsis in lexisnexis.com, the facts accepted for discussion of applicable law were that Mesa alleged that somebody was throwing rocks at him and that Hernandez, the dead teenager, was hiding behind a pillar watching as Mesa put one of his friends on the ground. So, even Agent Mesa could not assert that his victim threw rocks at him.

Second, if I understand your comment correctly, you argue that if this incident happened in Mexico, nobody would be surprised if the officer (or soldier, in your facts) shot and killed the rock thrower. My response to that is, so what? I know that police and military personnel in other countries commit monstrous acts against unarmed civilians, but we are talking here about a law enforcement officer in the United States quite casually killing another human being who may have thrown rocks at him. I say "quite casually" because the agent could have stepped back a few feet to get out of range of those deadly rocks.  Instead, he aims his pistol at the teenager attempting to hide behind a pillar a few feet away and shoots him in the face.

Third, despite your fear of rock-throwing teenagers attacking the U.S., the case was not decided on those grounds. When I say that the law keeps reality and justice from meeting, I mean exactly that. The 5th Cir. panel decided the dismissal on purely technical legal grounds. The only judge who attempted to look at the reality behind the law was Judge Edward Prado, who points out that a purely technical analysis risks creating "zones of lawlessness" depending solely on the location of the individuals involved in shooting incidents at the border. According to Judge Prado,

     "This would result, in turn, in perverse and disturbing incentives for government agents confronted with noncitizen migrants near the border.   Because directing lethal force into Mexico would violate no constitutional norms, a government agent resorting to deadly force would have every reason to fire his weapon before the migrant reaches the U.S. border [and before the would be migrant violates any U.S. law, by the way.--jlopez], or after the migrant crosses back into Mexico, to avoid civil liability".

Judge Prado also points to a potential problem with the majority opinion's somewhat hypocritical reliance on territorial factors:

     "And it goes without saying that if the scenario were reversed, and Mexican government agents were firing weapons across the border into the United States, unyielding conceptions of territoriality would likely fall by the wayside."  

So that is why I used a highly technical, but precisely applicable, legal term in describing your comment as "total bullshit". You did not address any of the issues or the facts of the case in your comment, and, in fact, invented some "facts" that were not in evidence. And, by the way, trying to misdirect the discussion by saying that incidents like these also happen in Mexico, etc., is a rhetorical trick not worth addressing. Your subsequent comment also assumes facts not in evidence.

The reality is that a U.S. civilian law enforcement officer, standing on U.S. soil, murdered a teenager who may or may not have thrown rocks at the officer, and the 5th Cir. Ct. App. has ruled that the officer has immunity because the teenager was standing on Mexican soil when he was shot. And according to the facts relied upon by the court -- the only facts that count-- there is no evidence that the victim was engaged in criminal misconduct when he was killed.
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Re: Fifthe Circuit reverses ruling that allowed Mexican national to sue Border Patrol agents

Bajadrone-2
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Re: Fifthe Circuit reverses ruling that allowed Mexican national to sue Border Patrol agents

ThinkTank
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Re: Fifthe Circuit reverses ruling that allowed Mexican national to sue Border Patrol agents

DD
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@Think Tank. You said "C'mon man, you know that border patrol agent did not fire his weapon without reason."

I agree with you that the BP had a reason.  That reason was the sense of impunity.  He knew he would not be punished or suffer adverse consequences because of the culture of impunity that has long existed in the agency.
(which by the way is THE root cause of all the violence in Mexico).

You compare what would happen if this had happened in Mexico and Mexican LE shot a US citizen across the border.  Lets forget, for a moment, the artificial line that delineates the separation of the two counties.  

Let's put the scene in front of a housing project in Chicago or Detroit.  A group of young people were standing in front of the projects when a police car on routine patrol passed and some of the youths started throwing rocks at the car.  As one of the cops got out of the car the crowd dispersed, but the cop saw a kid hiding behind a stair well.  He didn't see the kid throw anything, but he knew he lived in the projects and youth from the projects had thrown  rocks at him.  The cop shoots and kills the kid.  Would the cop be liable for using excessive legal force in killing the boy?  Or would the attitude of "he shouldn't have been with a group of his friends that were throwing rocks" prevail?
Words are powerful weapons, be careful how you use them.
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Re: Fifthe Circuit reverses ruling that allowed Mexican national to sue Border Patrol agents

Chivis
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doug ck your emails it is urgent
 
The way I see it.... the more people that don't like me, the less people I have to please
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Re: Fifthe Circuit reverses ruling that allowed Mexican national to sue Border Patrol agents

jlopez
In reply to this post by ThinkTank
Think tank, really? "A platform made of fantasy dust"? I represented a law enforcement agency for almost 20 years, and was involved in every aspect of its operations, from recruitment and training to criminal investigations, to arrests and internal investigations on (you guessed it) use of force, just to identify some of my relevant experience. In addition, throughout my career I was consulted by other law enforcement agencies and individual officers and supervised the legal and forensic aspects of several fraud investigations. I could go on, but maybe you get the point. Fantasy dust.

You are still avoiding the issue. Why is it right for a civilian law enforcement officer to shoot an unarmed teenager when, by all objective measures, the officer's life is not at risk? The answer, of course, is that it is not right. And as I have said in this forum, when a government agency ignores these problems, its ignorance eventually becomes unaffordable. Local, state and federal governments pay through the nose when their cops shoot anybody, but the cost skyrockets when the victim is unarmed and not a threat to the shooter. Don't believe me? Look at Ferguson, Albuquerque, Baltimore, just to name the more recent ones.

There's another cost that nobody wants to mention, but, it's there. When cops lose the public's trust, their jobs get much riskier. Bluntly stated, the risk of cops getting shot increases dramatically when members of the public see them as the enemy. Their jobs also become more difficult without the public's cooperation in their investigations.
 
Right now, thanks to the 5th Circuit Court ruling, Border Patrol agents can shoot Mexican nationals with total impunity if the Mexican national is standing on Mexican soil when he/she gets shot. This is true even if the Mexican is having a picnic with his family when he gets shot. But this is right now; in my opinion, this abuse of power will inevitably have adverse consequences for U.S. personnel. And who knows, the Supreme Court may find it politically expedient to change the law to something more consistent with reality.

Fantasy dust...  Jesus.
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Re: Fifthe Circuit reverses ruling that allowed Mexican national to sue Border Patrol agents

ThinkTank
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Re: Fifthe Circuit reverses ruling that allowed Mexican national to sue Border Patrol agents

DD
Administrator
@Think Tank.  You said;
"It is also quite a stretch to say the officers life was not at risk.

Assuming he (the BP agent) is a responsible person. He must have thought his life was at risk or he would not fire his weapon. Either that or he is just a stone cold killer. "

If his life was at risk, he would have been the first BP agent killed by rock throwing.  
Just as a side note, according to WIKIPEDIA the number of BP agents killed in confrontations since 1924 is as follows;

Assault: 2
Gunfire: 31
Stabbed: 2
Vehicular assault: 4

There were another 75 killed in "line of duty", but those were from heart attacks, car accidents, and other non-violent causes.

But none from rock throwing.

You also said;
"As for me, I have no opinion on this incident because I lack the facts to make an educated decision. The only person with those facts are the agent involved in the altercation.
I will however give the benefit of the doubt where it is due, and defend this mans right to the presumption that he carried out his duties and acted with the force he felt the situation warranted. In all fairness, you should do the same."

FACT Look at the photo below.  It is a fact that this was the scene of the shooting. The group of kids are standing by the column that the boy was standing behind and craning his neck to look across the river.  The 2 people you see on the other side of the river are where the BP agent was firing from.

From that distance would you feel your life was in danger from rocks thrown across the river?  Very few people could throw a rock that far or if they did it would not have the velocity to kill someone by the time it got there.

No BP agent has ever been killed by rock throwers.  He was at too great a distance for the rock throwers to cause him serious bodily injury or death.  I see no reason to give the BP agent the benefit of the doubt.  



Words are powerful weapons, be careful how you use them.
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Re: Fifthe Circuit reverses ruling that allowed Mexican national to sue Border Patrol agents

jlopez
In reply to this post by ThinkTank
The other factor I did not mention is that law enforcement officers are trained not to react like any panicky civilian. In my classes on legal issues arising from use of force my fundamental advice to cops was, 'if you stop somebody, arrest somebody or use force to subdue a suspect, you better make damn sure you can articulate the reasons for your actions. Because that will decide whether you are exonerated or found guilty.' A cop who reacts like a panicky civilian is just as dangerous to his employer as one who is intentionally abusive. We spent hours in the classroom and in the field running through scenarios.

So, Think tank, the law, not opinionated bloggers like me, demands that cops act like trained professionals that they are. You keep insisting that the cop must have thought this or that, or reacted this or that way, that we were not there, etc. The relevant facts are what the court finally rules are the relevant facts, period. The court decides what the facts are, thus whether the cop was wrong or right. That is a factual issue, one that generally cannot be appealed. I don't have to be there to give the cop or his victim the benefit of the doubt. Once the court rules on the facts, my sympathies are irrelevant.    
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Re: Fifthe Circuit reverses ruling that allowed Mexican national to sue Border Patrol agents

Chivis
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ouch....ferguson?  I will pretend you did not say that, let me replace city that with NYC (eric garner)

how about the recent cases two in LA and 2 in OC?

 those were white and Mexican.  two were mental patients
and Jim-Jim the portland rocker unarmed mental patient killed by police as he waited for a bus?

do people even know about these cases?  why not?  why is it the blacks are always highlighted

I wish I knew this.  "Black lives count"  if killed with police involvement "only black lives  count".

 
The way I see it.... the more people that don't like me, the less people I have to please
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Re: Fifthe Circuit reverses ruling that allowed Mexican national to sue Border Patrol agents

Chivis
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In reply to this post by jlopez
BTW

good exchange guys
 
The way I see it.... the more people that don't like me, the less people I have to please
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Re: Fifthe Circuit reverses ruling that allowed Mexican national to sue Border Patrol agents

Siskiyou_Kid
In reply to this post by Chivis
Yep. It's amazing how many unarmed people are killed by the police in and around Portland.

The Portland Police Department, along with other Oregon police, are some of the most liberal I've ever heard of when it comes to giving heroin addicted panhandlers a pass, not to mention actually helping mentally ill homeless people.

Some cities actually buy bus tickets for their homeless and drug addicts to go to Portland, and many transients will tell you that, aside from the wet winters, it's one of the best cities for homeless services and treatment.

At the same time  many of these same police have some of the worst records in the nation for killing individuals who are non-compliant. The situation is strange.

Those that say, don't know. Those that know, don't say.
JMB
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Re: Fifthe Circuit reverses ruling that allowed Mexican national to sue Border Patrol agents

JMB
In reply to this post by jlopez
I think it's best to read the brief before coming to conclusions. If you've never been in that situation, you don't know what you would do neither can you say what the BP Agent (a federal agent) should have done. I'm not all that keen on automatically believing a youth in a completely lawless Country. The fact that he and his friends throw objects at foreign law enforcement shows they're either a bunch of fools or being a distraction for the cartels. I tend to doubt a BPA named Jesús Mesa was out to blast Mexicans.

The standard for Use of Force is "a reasonable  and prudent police officer" ... not everyone else. The Courts will look to other cases of similar occurances for that decision.

As for the suing, no. It's an international border of which one side is not governed by US law. The youth was killed in Mexico. The Mexican government could reasonably file legal petition to the US government. The family can't itself sue an  individual "agent of the State" (a foreign State at that).

Anyhow, a link to the summary?
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Re: Fifthe Circuit reverses ruling that allowed Mexican national to sue Border Patrol agents

jlopez
JMB: I read the ruling, Hernandez v. U.S., Fifth Circuit Court of Appeals Case No. 11-50792, filed 04/24/2015. That should be enough info to find it on Google.

The 5th Cir. Ct. of Appeals, sitting as a three judge panel, had earlier ruled that on the facts before it, the survivors of Hernandez, the dead teenager, could sue the U.S. and Mesa for damages. However, the case was reheard, now before the full en banc court.  This time, the court reversed the three judge panel and ruled that BP agents have immunity from being sued by the victim or the victim's survivors because the victim was standing on Mexican soil when he was shot. That is why Judge Prado, whose concurrence I quoted, pointed out that the majority's reliance on territoriality would probably not stand if the roles were reversed, that is, if Mexican government agents had killed a U.S. citizen standing across he border on U.S. soil.

The facts are not in dispute. Repeat: the facts are not in dispute. That is what makes this case so tragic.