U.S. border patrol agents need to be held responsible for their extrajudicial killings of Mexicans on the country's border, two former agents and senior officials at the U.S. agency told the Supreme Court as part of its ongoing investigation into the case of Sergio Hernandez, a 15-year-old Mexican boy who was shot dead by border officers in 2010.
“Sergio Hernandez should not have been killed. He was an unarmed teen who did not pose an imminent threat to the U.S. Border Patrol agent, Respondent Jesus Mesa Jr., who shot him,” James F. Tomsheck and James Wong, two retired top internal affairs officials with U.S. Customs and Border Protection, said in their brief to the U.S. Supreme Court on the case last week.
“Because of conditions within the Border Patrol, similar incidents likely will continue to occur if agents cannot be held accountable in civil suits,” the former officials added. They said that Mesa fired shots towards Mexico and killed Hernandez at a border crossing between El Paso, Texas and Ciudad Juarez.
The U.S. Border Patrol alleges that at the time, Hernandez was pelting U.S. agents with rocks from the Mexican side of the Rio Grande before the shooting. U.S. authorities claim that Mesa shot Hernandez in self-defense.
Lawyers for Hernandez's family disputed that account, saying he was playing a game with other teenagers in which they would run across a culvert from the Mexican side and touch the U.S. border fence before dashing back.
The two former high-ranking officers, who have become outspoken critics of their former employer, warned that the U.S. border agency has become increasingly militarized and suffers high levels of corruption.
“In addition, the Border Patrol has become increasingly militarized since 2001, with some agents comparing their role to that of the U.S. Marine Corps — even though the Border Patrol is not part of the military, and is instead a civilian law enforcement agency,” Tomsheck and Wong wrote in their brief.
They further claim that drug cartels have been infiltrating the agency as they seek to gain influence to allow their organizations to smuggle drugs across the border under the Border Patrol’s nose.
“And pre-hiring screening programs have been inadequate, leading the Border Patrol in some instances to hire actual cartel members as agents.”
The top justices will review an April 2015 ruling by the New Orleans-based 5th U.S. Circuit Court of Appeals that threw out the civil rights claims against the agent, Jesus Mesa, filed by the family of Hernandez.
The appeals court argued that the U.S. Constitution's ban on unjustified deadly force did not apply to Hernandez because he was a Mexican citizen on Mexican soil when the shooting occurred in June 2010.
The agents at the U.S. Border Patrol “maintain a culture of protectionism that thwarts investigations even when they are undertaken,” the brief warned, adding that accountability is the only solution to the extrajudicial killings.
“Without the possibility of civil liability, the unlikely prospect of discipline or criminal prosecution will not provide a meaningful deterrent to abuse at the border. It did not deter Respondent Mesa from shooting Petitioners’ son,” they said urging the top court to allow the agent’s prosecution to go forward.
The news comes as President-elect Donald Trump has appointed retired General John F. Kelly to run the Department of Homeland Security, which oversees the Border Patrol agency.
Kelly’s military experience suggest he will more likely increase the militarization of the border as he has previously warned of vulnerabilities along the United States' southern border with Mexico.