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On The Front Lines

Rutherford Institute Asks U.S. Supreme Court to Hold Gov't Responsible for Using Unwarranted Deadly Force Against People Not on U.S. Soil

WASHINGTON, DC —The Rutherford Institute and a coalition of human rights organizations have asked the U.S. Supreme Court to reinstate a lawsuit filed by the family of a 15-year-old Mexican boy who was killed by a U.S. Border Patrol agent while playing in a culvert within feet of U.S. territory.

In an amicus curiae brief filed by The Rutherford Institute, Amnesty International, the Center for Constitutional Rights, and Human Rights First, the coalition asks the Court to reject the government’s argument that federal officers should not be held responsible for using unwarranted deadly force against persons who are not on U.S. soil. Lower courts had dismissed the lawsuit on jurisdictional grounds because the teenager, Sergio Hernandez, was in Mexican territory when he was shot in the head, although the Border Patrol agent was a U.S. citizen on U.S. soil. The coalition’s brief cites numerous international human rights treaties and conventions guaranteeing persons the right to life and the right to seek justice against those responsible for the unjustified taking of a life.

Attorneys Hope Metcalf of New Haven, Connecticut, and Brent Rosenthal of Rosenthal Weiner, LLP, in Dallas, Texas, assisted The Rutherford Institute, Amnesty International, Human Rights First, and The Center for Constitutional Rights in advancing the arguments in the Hernandez brief.

“For years now, America has been faced with a constitutional crisis over what the Constitution means and to whom it applies. Thus far, the courts have rationalized all manner of human rights abuses by government officials—extraordinary rendition, torture, waterboarding—as long as those abuses take place outside the United States,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “However, the government should not get a free pass just because it perpetrates its abuses against non-citizens beyond our borders. As Thomas Jefferson advised, all government agents should be bound by the chains of the Constitution.”

In the summer of 2010, Sergio Hernandez and several friends were playing in a concrete culvert that separates El Paso, Texas, from Juarez, Mexico. The borderline between the United States and Mexico runs through the culvert, with an 18-foot fence on the U.S. side of the culvert. As Sergio and his friends played a game where they would run up the U.S. side of the culvert and then scamper back down, a patrol of U.S. border agents approached the boys and seized one of the boys as he tried to run away. Sergio and the other boys ran back down the culvert embankment onto Mexican territory. According to the complaint filed in the lawsuit, after Sergio ran past Border Patrol Agent Jesus Mesa and toward a bridge pillar in the culvert, Mesa drew his firearm and shot Sergio in the head. At the time the shot was fired, the Border Patrol Agent was in U.S. territory and the teenager was in Mexican territory.

Soon after the shooting, the U.S. government issued a press release asserting Mesa shot the 15-year-old in self-defense, but cellphone videos of the incident discredited the claim. When the U.S. government refused to prosecute Mesa or allow his extradition to Mexico to face charges, Sergio’s family brought a civil rights complaint in a federal district court in Texas. However, the district court dismissed all claims against Mesa ruling that the Constitution’s protection against unwarranted deadly force do not apply to persons who are not on U.S. soil. The U.S. Court of Appeals for the Fifth Circuit also rejected the appeal, ruling that the Fourth Amendment’s protection against the use of excessive force by government officials does not apply to persons who are not in U.S. territory.


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