Constitution Protects All People from Unjustified, Deadly Force at the Border

July 6, 2012 10:44 am

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ACLU Border Affiliates Weigh In to Support Family of 15-year-old Shot by Border Agent

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The case involves 15-year-old Sergio Hernandez, a Mexican citizen who was shot and killed in 2010 by a U.S. border agent. The government alleges that Hernandez was throwing rocks at agents across the ravine that separates El Paso, Texas from Juarez, Mexico, though Sergio’s friends say they were playing and video footage of the incident raises serious doubts. The government is claiming that Hernandez, a Mexican citizen, enjoyed no legal protections under the U.S. Constitution. The ACLU brief argues that the Constitution necessarily limits border agents’ authority to use excessive force and that the victim was across the border does not eliminate constitutional constraints.

“It would be a dark and dangerous precedent for the courts to hold that federal agents can kill people with impunity merely because they are just across the border and not U.S. citizens,” said Sean Riordan, staff attorney of the ACLU of San Diego & Imperial Counties. “Sergio’s family deserves their day in court to ask that the government take responsibility when its agents abuse their power and kill without justification.” The amicus brief argues the government’s rationale is “staggering” and would mean that U.S. agents could intentionally shoot Mexican or Canadian citizens across the border with no judicial review when victims sought accountability.

The brief, filed by the ACLUs of Arizona, New Mexico, Texas, and San Diego & Imperial Counties, and by the national ACLU’s Immigrant Rights Project, refutes the government’s argument that the Hernandez family has no claim to protection since Sergio was “extraterritorial,” or outside of U.S. territory and thus outside of the Constitution’s protections. “[I]t is not the location of the claimant that is critical in triggering an extraterritoriality analysis,” the brief argues, “but the location of government activity. In [this] case, the constitutional violation occurred when U.S. border agent Mesa fired his weapon while standing on U.S. soil, and it is therefore irrelevant whether Hernandez was on the Mexican side or the American side of the U.S.-Mexico border.”

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