EL PASO, Texas (KTSM) — It was a warm El Paso summer afternoon in 2010 when in just a moment’s time a family’s life was changed, leading to an international dispute over Fourth and Fifth Amendment Rights that will head to the U.S. Supreme Court this week.
The U.S. Supreme Court is scheduled to begin hearing oral arguments in the case of Hernández v. Mesa on Tuesday. The case centers around the shooting death of Sergio Adrián Hernández Güereca, a 15-year-old Mexican teen who was standing on the Mexican side of the Rio Grande when he was shot and killed by U.S. Border Patrol Agent Jesus Mesa Jr. on June 7, 2010.
The incident happened in broad daylight near the downtown Paso Del Norte Bridge when Hernández Güereca and a group of teens gathered in the bottom of the river, just south of the international boundary.
The shooting was captured on grainy cell-phone video that garnered international attention and was the subject of protests in 2010.
Mesa maintains his use of deadly force against Hernández Güereca was justified because the teen was throwing rocks across the riverbed toward Border Patrol Agents.
Hernández Güereca’s family, however, believed the teen’s Fourth and Fifth Amendment rights were violated. His family filed suit, and ultimately the Fifth Circuit of Appeals decided that Hernández lacked Fourth Amendment rights because it was not “clearly established” that it was unconstitutional for an officer on U.S. soil to shoot a Mexican national on Mexican soil.
The Supreme Court granted the case, originally heard in 2017, after two lower federal appeals courts issued conflicting rulings. The U.S. Court of Appeals for the Fifth Circuit dismissed the claim for damages against Border Patrol Agent Mesa, but a Ninth Circuit appeals court came to an opposite conclusion in the case against Border Patrol Agent Lonnie Swartz who shot and killed a 16-year-old in a cross-border shooting in Nogales, Arizona in 2012.
Oral arguments will begin Tuesday to decide if Hernández Güereca’s parents have constitutional rights to sue Mesa in a civil case, which will ultimately affect another five victims killed by Border Patrol Agents who were standing in Mexico at the time of their deaths.
Randolph Joseph Ortega of El Paso law firm Ortega, McGlashan, Hicks & Perez will be representing Border Patrol Agent Mesa in the case. The Hernández family is being represented by University of Texas at Austin Law Professor Stephen Vladeck.