This fall, the Supreme Court will decide whether the parents of Sergio Hernández Güereca, a 15-year-old Mexican teen killed by a Border Patrol agent in 2010, can sue the American agent in a U.S. federal court. It’s been nearly 10 years since Border Patrol agent Jesus Mesa, Jr. shot across the El Paso-Juárez border and struck Hernández Güereca in the head. The central question in the case is whether a Mexican citizen killed on Mexican soil by a U.S. border agent is protected by the U.S. Constitution — allowing for the family members of victims to file civil lawsuits. If the Supreme Court rules in favor of Hernández Güereca’s case, the decision will likely impact other cross-border killing cases, including that of 16-year-old José Antonio Elena Rodríguez, who was shot and killed by Border Patrol agent Lonnie Swartz on the Mexico side of the border in 2012. We speak with Lee Gelernt, deputy director of the ACLU Immigrants’ Rights Project, who represents José Antonio Elena Rodríguez’s family in the civil lawsuit.
AMY GOODMAN: This is Democracy Now! I’m Amy Goodman. In October, the U.S. Supreme Court will decide whether the parents of Sergio Hernández Güereca, a 15-year-old Mexican teen killed by a Border Patrol agent, can sue the U.S. agent in U.S. federal court. The case began in 2010 after Border Patrol agent Jesus Mesa, Jr. shot across the El Paso-Juárez border and struck Hernández Güereca in the head. The teen had been playing with his friends on the Mexican side of the border when he was killed.
The central question in the case is whether a Mexican citizen killed on Mexican soil by a U.S. border agent is protected by the U.S. Constitution, allowing for the family members of victims to file civil lawsuits. If the Supreme Courts rules in favor of Hernández Güereca’s case, the decision will likely impact the case of 16-year-old Mexican teenager José Antonio Elena Rodríguez.
For more, we continue our conversation with Lee Gelernt, deputy director of the ACLU Immigrants’ Rights Project, who represents José Antonio’s family in the civil lawsuit. As you watched the mother and grandmother speak, it was very familiar to you, Lee —
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LEE GELERNT: Right.
AMY GOODMAN: — because you’ve been in their homes so many times.
LEE GELERNT: Right.
AMY GOODMAN: Talk about your involvement with this case and how this is going to the Supreme Court, even after the border agent was acquitted.
LEE GELERNT: Right. So, there are two parallel systems. The Justice Department brought the criminal case. The agent was acquitted. We’re not sure how he was acquitted, but he was acquitted. And so that’s that system. But we have brought a civil rights case against the agent himself for money damages. Obviously, money damages cannot undo what’s happened, but it would be some vindication to have a lawsuit that’s successful against the agent. And so, we have prevailed so far in the lower courts, and the 9th Circuit Court of Appeals said —
AMY GOODMAN: That José Antonio’s family can sue in a court here, though he was killed on Mexican soil.
LEE GELERNT: Exactly. But Sergio Hernández’s case in Texas, that U.S. Court of Appeals for the 5th Circuit said you cannot bring this civil rights suit. So the case has reached the Supreme Court. The Supreme Court will hear the Hernández case, which was ahead of our case, and that will likely impact what’s happened.
And I would say, I’ve been doing this work a long time. And what I always try and do is explain to the family this is the government’s position. And generally speaking, people understand it. They don’t agree with the government’s position, but they understand. I would say this is the hardest time I’ve ever had in my 30-year career of explaining the government’s position, because what the government is saying is, he’s a Mexican citizen on Mexican soil, although only 15 feet over the border. He cannot sue, because this is essentially a case in Mexico, is what the government is saying. And the parent — his mother and his grandmother just look at me and say, “But it’s a U.S. agent, using a U.S. firearm, standing on U.S. soil. Why does this not involve the United States government? Why does the Constitution not apply to him?”
AMY GOODMAN: And for people to understand, when you say, “How do you shoot through a wall?” there are slats in this wall.
LEE GELERNT: Exactly.
AMY GOODMAN: This is the equivalent of stories above —
LEE GELERNT: Right.
AMY GOODMAN: — where this boy was, across the street in Mexico. But there are slats in the wall, and he shot through, pointing down. It’s like a fish in a fishbowl.
LEE GELERNT: Yeah.
AMY GOODMAN: And we talked to them right where he died. There is a mural of him.
LEE GELERNT: Right, right.
AMY GOODMAN: And they stood as if he was standing with them.
LEE GELERNT: Right. And that is a street, a main thoroughfare in Nogales, where people go to school, go to medical appointments, go to business appointments. And so they have to be walking there. If they are just sitting there and can be shot with constitutional impunity, that’s a very dangerous situation. And we are hoping the U.S. Supreme Court says this civil rights suit can go forward, because this is the last straw, at least in our courts, for him.
AMY GOODMAN: What’s amazing in this trial is that his co-workers, the other border agents, they didn’t shoot at José Antonio.
LEE GELERNT: Right, right. I think what that —
AMY GOODMAN: They said they didn’t see a threat.
LEE GELERNT: Right. And if you have been there — and your piece did a great job of showing that — you would essentially have to be a Major League Baseball player even to get a rock up there to come close to hitting anybody. And so, what we’ve always said is, look, there is no way that he was in mortal danger and needed to shoot. But the question is not really whether José Antonio was throwing rocks or not. Assume for the moment, for purpose of argument, that he was throwing rocks. There’s no way that the agent could have been hurt, and that’s exactly shown by the fact that two other agents are standing there just watching.
AMY GOODMAN: And he also had lied in other situations. Explain Lonnie Swartz, who he was.
LEE GELERNT: Yeah, I mean, so, we don’t know everything that’s happened. But what we are understanding is that his disciplinary record was not great. And stuff came out at the trial, and yet the jury still acquitted. And I think that just shows how hard it is to —
AMY GOODMAN: That he had been discharged from the military.
LEE GELERNT: Yeah. That just shows how hard it is to convict a law enforcement agent. And that’s why these civil rights lawsuits are so critical. That’s why the government wants to shut it down. They’re saying, “We’ll decide whether to discipline an agent.” And that’s, you know, the fox-guarding-the-hens situation.
AMY GOODMAN: And the significance of this U.S. Supreme Court case, not only for José Antonio’s family, but for others, if it was —
LEE GELERNT: Oh, I think it’s enormous, because what it would be saying is Border Patrol agents have basically impunity there. And what we’re seeing, and we’ve seen for a long time, is serious abuse. And I think this administration is sending a signal: Treat this as if it’s a military operation. And so, we’re likely to see more and more abuse. And if the Supreme Court says these lawsuits can’t go forward, that’s going to be a very dangerous situation.
AMY GOODMAN: Well, Lee, I want to thank you very much for being with us. And, of course, we will continue to follow this story as the Supreme Court weighs this decision. Lee Gelernt is the deputy director of the Immigrants’ Rights Project at the ACLU.