Constitution Protects All People from Unjustified, Deadly Force at the Border

Should a border patrol agent who kills an unarmed 15-year-old be allowed to escape judicial review, because the agent was on the U.S. side of the border and the child was over the line in Mexico?  The ACLU says, “No,” in a friend-of-the-court brief filed in federal court in Texas today.  The brief argues that the youth’s family has a valid constitutional claim in its excessive force lawsuit against the government.

The case involves 15-year-old Sergio Hernandez, a Mexican citizen who was shot and killed in 2010 by a U.S. border agent.  The government alleges that Hernandez was throwing rocks at agents across the ravine that separates El Paso, Texas from Juarez, Mexico, though Sergio’s friends say they were playing and video footage of the incident raises serious doubts.  The government is claiming that Sergio Hernandez, a Mexican citizen, enjoyed no legal protections under the U.S. Constitution.  The ACLU brief argues that the Constitution necessarily limits border agents’ authority to use excessive force and that the victim was across the border does not eliminate constitutional constraints.

“It would be a dark and dangerous precedent for the courts to hold that federal agents can kill people with impunity merely because they are just across the border and not U.S. citizens,” said Sean Riordan, staff attorney of the ACLU of San Diego & Imperial Counties. “Sergio Hernandez’s family deserves their day in court to ask that the government take responsibility when its agents abuse their power and kill without justification.”  The amicus brief argues the government’s rationale is “staggering” and would mean that U.S. agents could intentionally shoot Mexican or Canadian citizens across the border with no judicial review when victims sought accountability.

The brief, filed by the ACLUs of Arizona, New Mexico, Texas, and San Diego & Imperial Counties, and by the national ACLU’s Immigrant Rights Project, refutes the government’s argument that the Hernandez family has no claim to protection since Sergio was “extraterritorial,” or outside of U.S. territory and thus outside of the Constitution’s protections. “[I]t is not the location of the claimant that is critical in triggering an extraterritoriality analysis,” the brief argues, “but the location of government activity. In [this] case, the constitutional violation occurred when U.S. border agent Mesa fired his weapon while standing on U.S. soil, and it is therefore irrelevant whether Hernandez was on the Mexican side or the American side of the U.S.-Mexico border.”

“We think it would be entirely appropriate for the Court to reach a limited holding—that when a U.S. border patrol agent uses excessive, deadly force while in U.S. territory, and that force harms a noncitizen across the international border, that individual has a claim under the Fourth Amendment,” Riordan said.  “This would be consistent with other cases where courts have found that noncitizens have constitutional rights at the border to protect them from bad actions by immigration enforcement officials.”

In June 2011, more than sixty organizations along the U.S.-Mexico border signed a letter to two congressional committees calling for an immediate investigation and an end to the border patrol practice of using lethal force against rock-throwers.  The ACLU filed an administrative complaint this past May, citing an alarming number of cases in which border agents used excessive force at ports of entry at the U.S.-Mexico border.  The ACLU border affiliates belong to a coalition, the Southern Border Communities Coalition, whose leadership has done an extraordinary job in bringing to light instances of unjustified lethal force on the part of U.S. government agents, in particular, revelations about the tragic case of Anastacio Hernandez Rojas, who was beaten and tased to death as a group of twenty or so border agents surrounded him.

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