Appeals court: Family of teen shot in Mexico by US Border Patrol agent cannot sue in US court

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NEW ORLEANS — A U.S. Border Patrol agent who killed a teenager when he fired across the border from Texas into Mexico cannot be sued in U.S. courts by the Mexican teen's family, a federal appeals court ruled Friday.

The unanimous ruling was issued by the full 5th U.S. Circuit Court of Appeals, reversing most of an earlier 2-1 ruling by a three-judge panel of the court. The border agent's lawyer said the opinion vindicated his client.

An attorney for the teen's family said they haven't decided whether to appeal to the U.S. Supreme Court.

"We leave for others to decide whether this court has lost its moral bearings," attorney Marion Reilly said in a written statement. "On behalf of the parents of an innocent slain teenager — a human being, regardless of his nationality — we simply note that they and we had not expected such a decision from a court of the United States."

U.S. Border Patrol agent Jesus Mesa Jr. shot 15-year-old Sergio Adrian Hernandez Guereca in June 2010. U.S. investigators said Mesa was trying to arrest immigrants who had illegally crossed into the country when he was attacked by people throwing rocks. Mesa fired his weapon across the Rio Grande, twice hitting Hernandez Guereca.

The shooting occurred near a bridge between El Paso, Texas, and Ciudad Juarez, Chihuahua

Originally the family's lawsuit was filed in U.S. District Court, where a judge ruled that they couldn't sue in the U.S. because the shooting's effects were "felt in Mexico." The three-judge panel of the 5th Circuit later held that Mesa could be sued, but Friday's decision by the full court overturned that finding and upheld the district judge.

The full court rejected the family's contention that Mesa's immunity from a civil suit was overcome by the U.S. Constitution's Fourth Amendment, which guarantees the right of "the people to be secure in their persons," or by Fifth Amendment protections against deprivation of life without due process of law.

A Fourth Amendment claim cannot be asserted by a Mexican citizen on Mexican soil with no significant connection to the United States, the appeals court ruled.

While there were differing rationales expressed in concurring opinions on whether Mesa violated Hernandez's Fifth Amendment rights, the court was unanimous in concluding that such rights could not have been clear to the agent. "No case law in 2010, when this episode occurred, reasonably warned Agent Mesa that his conduct violated the Fifth Amendment," the unsigned majority opinion said.

Hernandez Guereca's family disputed that.

"It is common ground, and the court does not deny, that the agent knew that it would have been wrong to kill a U.S. citizen who was standing in Mexico," Reilly's statement said. "So the court has ruled that it was appropriate for the agent to kill an unarmed teenager based on his nationality — don't kill him if he is a U.S. citizen, but fire away if he is a Mexican."

Mesa's attorney, Randolph Ortega, said "we're very happy" with the ruling. Noting that the 5th Circuit's ruling was unanimous, Ortega said he doubted the U.S. Supreme Court would take up the case if Hernandez Guereca's parents pursued an appeal.

In the earlier, three-judge panel opinion, judges Edward Prado and James Dennis had held that the teen's family could assert Fifth Amendment rights. They did not dissent in Friday's opinion and Prado agreed in a concurrence.

"I agree with the en banc court's holding that the constitutional rights asserted by 15-year-old Sergio Hernández and his family were not clearly established in 2010, when Agent Mesa fired his fatal shots across the international border," Prado wrote.

Although it was unclear whether further appeals of the teen's case will be pursued, Prado added that it will be up to the Supreme Court "to provide clarity ... on the extraterritorial reach of constitutional rights."

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