Supreme Court to decide if Mexicans can sue agent for cross-border shooting

The Supreme Court will hear arguments involving a case of a border agent firing his gun at an unarmed teenager who was standing on the Mexican side of the border.  A cell phone video shows the agent taking aim and firing at the teen who was about 60 feet away.


Between 2005 and 2013, there were 42 such cross-border shootings, a dramatic increase over earlier times.

The shooting took place on the border between El Paso, Texas, and Juárez, Mexico.

The area is about 180 feet across. Eighty feet one way leads to a steep incline and an 18-foot fence on the U.S. side — part of the so-called border wall that has already been built. An almost equal distance the other way is another steep incline leading to a wall topped by a guardrail on the Mexican side.

In between is a the dry bed of the Rio Grande with an invisible line in the middle that separates the U.S. and Mexico. Overhead is a railroad bridge with huge columns supporting it, connecting the two countries.

In June 2010, Sergio Hernández and his friends were playing chicken, daring each other to run up the incline on the U.S. side and touch the fence, according briefs filed by lawyers for the Hernández family.

At some point U.S. border agent Jesus Mesa, patrolling the culvert, arrived on a bicycle, grabbed one of the kids at the fence on the U.S. side, and the others scampered away. Fifteen-year-old Sergio ran past Mesa and hid behind a pillar beneath the bridge on the Mexican side.

As the boy peeked out, Agent Mesa, 60 feet or so away on the U.S. side, drew his gun, aimed it at the boy, and fired three times, the last shot hitting the boy in the head.

Although agents quickly swarmed the scene, they are forbidden to cross the border. They did not offer medical aid, and soon left on their bikes, according to lawyers for the family.

A day after the shooting, the FBI's El Paso office issued a press release asserting that agent Mesa fired his gun after being "surrounded" by suspected illegal aliens who "continued to throw rocks at him."

Two days later, cell phone videos surfaced contradicting that account. In one video the boy's small figure can be seen edging out from behind the column; Mesa fires, and the boy falls to the ground.

"The statement literally says he was surrounded by these boys, which is just objectively false," says Bob Hilliard, who represents the family. Pointing to the cell phone video, he says it is "clear that nobody was near" agent Mesa.

While the cell phone video is damning, other video of the incident not released to the public shows the children throwing rocks at the agent.

The Justice Department refused to prosecute the agent, and when Mexico charged him with murder, the U.S. refused to extradite him.  No court record exists that gives a finding of facts in the case, so the Supreme Court can only decide whether the parents have a right to sue.

It should be noted that this section of the border is rife with drug and human trafficking.  Mexico's incredibly violent drug war regularly spills over the border onto U.S. soil, and actions taken by border agents should always be examined with that understanding.

But again, that has little to do with the legal issue before the court.  Foreign nationals are rarely allowed to sue U.S. agents if the crime occurs outside the jurisdiction of the United States.  So did the crime take place in the U.S., where the border agent fired his gun, or did it occur in Mexico where the bullet found the unfortunate teenager? 

The Supreme Court should be mindful that whatever they decide will have huge implications for border agents.  Next time, it might not be a teenager.  Next time, it could be a criminal aiming an automatic weapon at the agent.

Agents are already risking their lives in performance of their jobs.  You would hope the Supreme Court doesn't make that any more difficult.

If you experience technical problems, please write to