Based on more than 13,000 documents worth of data coming from Border Patrol reports, records from the Mexican foreign ministry, news accounts compiled by the Southern Border Coalition, and an investigation by the Arizona Republic, Border Patrol agents have killed at least 52 people since 2004, including 15 US citizens, with 30 of those fatalities occurring since 2010, including the seven cross-border cases.Now the families of these victims, their lawyers and advocacy groups, have joined together to force a decision with important implications for border politics, as well as their respective quest for justice.'Let the dog die'
One of the cases, the shooting of the 15-year-old boy, led to a lawsuit— Hernández v. Mesa — that is now before the US Supreme Court, which is due to decide by April 1 whether to postpone the case, fully consider it, or throw it out altogether. At the same time, several other cases are moving through the courts, including another civil suit that is similar to the one being considered by the Supreme Court and the first criminal case ever to be prosecuted for a cross-border shooting.If the Supreme Court either rejects the case, or if it upholds the last appellate court ruling in the government's favor, Mexican families will not have the right to sue the government for civil rights violations of deceased relatives who have been victims of cross-border killings at the hands of Border Patrol agents.However, if Mexican families win either or both of the civil cases, they will gain Fourth and Fifth Amendment rights, including the chance to sue Border Patrol agents who kill or seriously injure their family members. This could result in compensatory damages via the constitutional and civil rights they will have gained.Related: US-Mexico Border Patrol Agents Can Get Away With Pretty Much Anything
Lawyers representing the families argue that this argument circumvents the obvious."You don't need a court decision to say that it is wrong to kill an unarmed 15-year-old boy," says Steve Shadowen, one of the lawyers representing the Hernández family."It's common sense and decency that you get judicial review when it comes to police killings of unarmed children," he added.Shadowen also stressed that at the time Hernández was shot, the officer didn't know whether the boy was a US or a Mexican national.'You don't need a court decision to say that it is wrong to kill an unarmed 15-year-old boy'
Federal agencies — Border Patrol is part of US Customs and Border Protection (CBP), which is part of the Department of Homeland Security — have tended to justify cross-border killings on the grounds that Border Patrol agents only shot because they were in danger from the victims throwing rocks at them. Lawyers for the families of shooting victims have dismissed this argument, as have US government officials in other contexts. When Hillary Clinton was secretary of state, she criticized Egyptian security forces for using deadly force against stone-throwing protesters shortly before the fall of the US-supported Hosni Mubarak regime.At the international level, United Nations Commissions on Human Rights, civil rights groups such as the American Civil Liberties Union, and human rights groups such as Amnesty International and Human Rights Watch have issued condemnations against fatal force being used against rock throwers.Related: Talking to Deported Immigrants Through the US-Mexico Border Fence
Tomsheck also recalled the assessment of a senior FBI official who stated that if the Border Patrol were a municipal police agency, its excessive use of force would have resulted in it being put into "federal receivership," similar to what has happened in Ferguson, Albuquerque, and other cities with troubled police departments where the Department of Justice has intervened by launching civil rights probes.The 52 people killed by Border Patrol agents since 2004 include several unarmed men who were beaten to death, a Mexican citizen who died after he was forced to drink concentrated liquid methamphetamine, and other civilians who were shot, pepper-sprayed, or shocked with stun guns.Related: 'It's an American Problem': Meet the Militias Patrolling the US Border
'The means by which [potentially hired Border Patrol] personnel have been screened has led to a significant percentage who are unfit to carry a gun and a badge'
Last September, CPB agent Lonnie Swartz was charged with second-degree murder for killing 16-year-old José Antonio Elena Rodríguez. Swartz shot the teenager at least 10 times from the US side of the border while Elena Rodríguez was taking a nighttime stroll down International Avenue in Nogales, Mexico in 2012.
Parra maintains that the government is contradicting itself by charging one of its officers with murder while also taking the position that "qualified immunity" applies to civil cases related to cross-border shootings.Parra added that his client's citizenship is irrelevant."There was a boy that was shot with 10 bullets in his own country and he was not committing any crimes," he said. "What gives them the right to spray 10 bullets into a boy in his own country?"'There was a boy that was shot with 10 bullets in his own country and he was not committing any crimes…. What gives them the right to spray 10 bullets into a boy in his own country?'
Guillermo Arevalo Pedroza, the unarmed construction worker killed by the Border Patrol in 2012, was "a happy person, a playful father and a family man. He liked to play and watch soccer," his widow Nora Isabel Lam told VICE News."Nobody expected it and I never thought they were going to kill my husband," she said. "I am not sure if the case will be considered but I simply pray that good news will come out this when all is said and done."'I don't want any other parents to suffer in the manner in which I have'
Whether Border Patrol agents will ultimately be held accountable for cross-border shootings depends on the pending Supreme Court case regarding the killing of 15-year-old Sergio Adrián Hernández. Prior to their case reaching the high court, the Hernández family had a string of ups and downs in the courtroom. In 2012, a lower court judge acknowledged that the case involved the "wrongful taking of life," but ultimately ruled that it should be dismissed because "the victim was not a US citizen and incurred the injury in Mexico."A partial panel of the Fifth Circuit Court reversed the decision in 2014, resulting in an unexpected and significant victory for the Hernández family. But even that gain was short-lived — the full court reversed the decision after an appeal by the Obama administration.
Shadowen, another Hernández family attorney and Hilliard's colleague, said he thinks it is unlikely to be thrown out, in large part because the justices decided late last year to send the case to Solicitor General Donald B. Verrilli, Jr., the government's legal expert and adviser, for consideration.Although Verrilli wrote in opposition to the Mexican families on behalf of the federal government, Shadowen said that it's a less important indicator than the fact that most cases sent to the solicitor general for an opinion end up being fully considered by the Supreme Court.In light of the recent death of Justice Antonin Scalia, however, some believe that the most likely decision will be a delay.Parra, the Elena Rodríguez lawyer, said that this could also give more importance to his pending case before the Ninth Circuit since it could come to trial before the Supreme Court decides anything on the Hernández case. Lower courts have ruled favorably for Elena Rodríguez, which could be significant going forward depending on the outcome of the separate Supreme Court case.Hilliard nevertheless remains optimistic about his chances. He told VICE News that, at the end of the day, "You can't have a free killing zone or a place where law enforcement agents are allowed to shoot and murder innocent Mexican nationals without civil recourse."In spite of Hilliard's optimism, the question remains: Will border immunity in terms of cross-border killings continue to survive without any legal recourse for Mexican victims? Nothing less than that question is what is at stake this week in light of the pending decision to be taken by the Supreme Court.'You can't have a free killing zone or a place where law enforcement agents are allowed to shoot and murder innocent Mexican nationals without civil recourse'
Follow Andrew Kennis on Twitter:@Andrew_KennisRelated: Creepy Border Patrol Agent Spies on Female Employees Undressing in Bathroom