US/Mexico border "incident"

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US/Mexico border "incident"

Postby ronin » Wed Jun 09, 2010 10:33 am

So,... draw whatever parallels you wish. To me, this is reprehensible and simply wrong. I wonder if the bullets needed a visa to cross the border?

Mexico has demanded a full inquiry after a Mexican teenager died after a US border patrol agent opened fire from the US side of the border.

The youth, believed to be 14 or 15, was found on the Mexican side under a bridge linking Ciudad Juarez with El Paso.

US authorities said the agent was defending himself and colleagues after they came under attack from people throwing stones and rocks.


"Using firearms to respond to an attack with rocks is a disproportionate use of force, particularly coming from officials that are specially trained," the Mexican foreign ministry said in a statement.


http://news.bbc.co.uk/2/hi/world/us_and ... 271034.stm
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Re: US/Mexico border "incident"

Postby seemslikeadream » Fri Jun 11, 2010 12:04 am

Warning Graphic Pics
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Mazars and Deutsche Bank could have ended this nightmare before it started.
They could still get him out of office.
But instead, they want mass death.
Don’t forget that.
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Re: US/Mexico border "incident"

Postby ronin » Fri Jun 11, 2010 12:47 pm

Here's a followup story on what happens next,..

"This shooting across the border appears to have been a grossly disproportionate response and flies in the face of international standards which compel police to use firearms only as a last resort, in response to an immediate, deadly threat that cannot be contained through lesser means," said Susan Lee, Americas director at Amnesty International, in a statement Wednesday on the organization's website.

The Mexican government also has requested a quick and public investigation into the fatal shooting at the border between El Paso, Texas, and Ciudad Juarez, Mexico, on Monday night. The teen was shot during a rock-throwing incident, Mexican and U.S. officials said.

On Wednesday, State Department spokesman P.J. Crowley said the United States will ensure a thorough investigation.

"We pledge that (the) investigation will be fully transparent," he said.


This is gonna be bullshit and about as transparent as concrete. Mexican kid throws rocks (while standing in Mexico), US border patrol agents (standing in US) blow his brains out as response to the, um, threat,.. yeah, we're not going to have a comprehensive, transparent, substantive, investigation that results in anything. Right now, some tea-bagging oath keeper is loving it while masturbating to a poster of Sarah Palin. I can't believe it. A kids with rocks.

http://www.cnn.com/2010/US/06/09/mexico ... ng/?hpt=T3
"Fable is more historical than fact, because fact tells us about one man and fable tells us about a million men." - G.K. Chesterton
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Re: US/Mexico border "incident"

Postby seemslikeadream » Fri Jun 11, 2010 2:17 pm

Mexican (Palestinian)kid throws rocks (while standing in Mexico (Palestine), U.S. (Israeli) border patrol agents (standing in Israel) blow his brains out as response to the, um, threat,.
Mazars and Deutsche Bank could have ended this nightmare before it started.
They could still get him out of office.
But instead, they want mass death.
Don’t forget that.
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Re: US/Mexico border "incident"

Postby lupercal » Fri Jun 11, 2010 2:24 pm

Apparently the rock-throwing business is a crock:

JUAN GONZALEZ: New evidence has emerged that casts doubt on the claims of a US Border Patrol agent who shot and killed a fifteen-year-old Mexican boy on Mexican soil on Monday. The teenager, Sergio Adrian Hernandez Güereca, was shot in the head on the banks of the Rio Grande that divides the United States and Mexico.

US authorities said Hernandez was part of a group of boys throwing rocks at Border Patrol agents who were trying to detain two people at the border crossing.

But a cell-phone video obtained by the Spanish-language network Univision shows otherwise. The grainy footage shows a Border Patrol agent detaining one man at gunpoint. While he has the man on the ground, he points his gun towards a second person on the Mexican side of the border.

The video shows that person running away as the agent fires several shots. The video then shows a body next to a column under the bridge.

Witnesses also dispute the claims of the Border Patrol agent. They say Hernandez was hiding behind the column when he looked out and was shot in the head.


WITNESS: [translated] Nothing. They were not carrying anything. They weren’t carrying weapons, packages, backpacks. Only the clothes they were wearing. That’s it. The teenager lying there, the only thing that he did was look out. When he looked out, he was shot. The agent shot him twice. He thought about it for about five seconds, because he shot at him once, left him astonished, then he shot him again. It seems he was hit in the head.

http://www.democracynow.org/2010/6/10/m ... on_mexican
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Re: US/Mexico border "incident"

Postby elfismiles » Fri Jun 11, 2010 3:00 pm

Terrible ... as soon as I heard about this I remembered this other terrible "incident" ...

Minutemen kill father and 9-year-old daughter
viewtopic.php?f=8&t=24265

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Brisenia Flores

Armed Radical ‘Minutemen’ Kill Father and 9-Year-Old Daughter in Anti-Immigrant Hate
http://www.alternet.org/story/140745/

Journalist calls for rounding up ‘hate promoters’
http://www.examiner.com/x-9462-LA-Ron-P ... -promoters

The Paranoids Are Out to Get Me!
http://reason.com/news/show/134156.html
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Re: US/Mexico border "incident"

Postby Alaya » Fri Jun 11, 2010 4:12 pm

I wish those photos were all over the front pages.

It's tragic and more tragic that people do not grok the pain of this spilled blood unless it is 'one of their own',
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Re: US/Mexico border "incident"

Postby ronin » Tue Jun 22, 2010 4:32 pm

Just trying to follow this, here are the latest links I could find. Doesn't look like much movement which isn't too surprising I guess. I work with a few managers whose strategy is to ignore problems until they just go away/resolve themselves. Neat trick which often works for them. But dissipation isn't resolution and it sure as hell isn't justice.

http://vivirlatino.com/2010/06/15/16910 ... rLatino%29
http://wonkroom.thinkprogress.org/2010/ ... er-bonner/
http://www.racewire.org/archives/2010/0 ... oting.html
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Re: US/Mexico border "incident"

Postby 8bitagent » Tue Jun 22, 2010 6:49 pm

The border guards are taught to shoot at a kid with a rock on the Mexican soil...yet are told to STAND DOWN when ultra violent Mexican drug terrorist armies come invading.

Its funny how silent the media is on the Mexican civil war and chaos happening less than a few miles from America's borders. The US is out spending trillions to murder Muslims, when the real terrorists are right on our border destroying countless Mexican's lives. (not that Im advocating more military crap, just saying its ironic)
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Re: US/Mexico border "incident"

Postby seemslikeadream » Thu Feb 16, 2017 12:09 am

Can U.S. Border Patrol Kill an Unarmed Mexican Child


Legally?


Supreme Court to decide whether U.S. Border Patrol agent can be sued for shooting Mexican teenager

Bob Hilliard, founding partner at Hilliard Muñoz Gonzales LLP in Corpus Christi, has taken up the cause of Sergio Adrian Hernandez Guereca, a young Mexican citizen killed by U.S. Border Patrol Agent Jesus Mesa, who shot the teen as the unarmed boy stood yards away in Mexico.




Texas attorney taking U.S. border tactics case to Supreme Court
David Hutton Feb. 14, 2017, 12:24pm

CORPUS CHRISTI – A Texas attorney is taking the case of a 15-year-old Mexican boy killed by a U.S. Border Patrol Agent in a cross-border shooting to the highest court in the United States.

Robert C. Hilliard
Robert C. Hilliard | Photo provided by Hilliard Muñoz Gonzales LLP
Bob Hilliard, founding partner at Hilliard Muñoz Gonzales LLP in Corpus Christi, has taken up the cause of Sergio Adrian Hernandez Guereca, a young Mexican citizen killed by U.S. Border Patrol Agent Jesus Mesa, who shot the teen as the unarmed boy stood yards away in Mexico.

Hilliard told The Record he will argue the Constitutional issue before the U.S. Supreme Court on Feb. 21 to present oral argument that the protections of the Constitution's Fourth Amendment apply.

“There are a couple of points,” he said. “First, Does the Fourth Amendment apply? Second, does the officer have qualified immunity because he did not know shooting Mexicans was a violation of the Constitution (no case or court has ‘put him on notice’)” Third, does the family have a Constitutional damage remedy under a case called Bivens?”

The Guereca shooting occurred in June 2010. According to a witness, the agent shot the teen twice.

Guereca’s shooting wasn’t the first time that a Mexican citizen had been shot from across the border by a border agent.

“At least 10 times Border Patrol agents have shot across the border in recent years (cross-border shootings) resulting in six deaths,” Hilliard told The Record. “To date, attempts to hold agents accountable for their actions have failed because the victims were Mexican citizens standing on Mexican soil.”

Hilliard explained that the U.S.-Mexican border serves as a symbol, more than just the physical end of one country and the beginning of another.

“It is a reminder of an indisputable and permanent connection of cultures and peoples, of shared lives and daily interactions,” he said in a press release.

Hilliard added that the border was never meant to mark the end of rule of law and civil protections.

“This would be a typical excessive force case against the rogue officer with the types of damages available to the family as is usually found in this litigation,” he added.

A previous decision by the U.S. Fifth Circuit Court of Appeals dismissed efforts to bring those responsible for Sergio's death to justice, suggesting that the teenager was not protected by the U.S. Constitution, because he "was on Mexican soil at the time he was shot."

"Our Constitution is strong enough to protect the most vulnerable and innocent of our southern neighbors," said Hilliard in the release. "The Fourth Amendment prohibits unjustified use of deadly force."

The high court will decide if Sergio's family can sue the U.S. Border Patrol and whether the U.S. Constitution protects noncitizens like Sergio, who are the victims of a U.S. agency's alleged excessive force.

Hilliard noted that there currently is a split in the cases regarding the right of the victim to sue in the U.S.

“The officer was standing in the U.S. when he fired the shot and his victim was feet away,” he said. “Under the government’s view in my case, the U.S. Constitution does not apply to the officer and does not constrain him from killing a non-threatening, unarmed boy for the sole reason the boy was in Mexico,” he said. “Had Sergio been shot a few feet north, then the U.S. Constitution’s 4th amendment prohibiting unreasonable excessive force would have applied. It's nuts. No facts change, but location – and the Constitution should not be a light switch that the officer can turn on and off.”

U.S.-Mexico relations have been at the forefront in recent weeks with President Donald J. Trump’s recent executive order to build a wall at the border between the two countries. That issue has led to tensions between the two countries. The current socio-political climate can have a tremendous impact on cases such as this.

“The original undercurrent of the current socio-political climate has become the tidal wave of the case,” Hilliard said. “Our foundational argument is separations of powers. The executive branch of the government cannot be given a blank check to do what it wishes and act how it pleases while thumbing its nose at the Constitution and the right/duty of the judiciary to be the ‘constitutional check’ on their actions.”
http://setexasrecord.com/stories/511080 ... reme-court



Death in the sands: the horror of the US-Mexico border
Donald Trump has pledged to build a ‘beautiful wall’ – but America’s frontier with Mexico is already aggressively defended by the drones and fences of the US border patrol. It’s a strategy that is causing ever more migrants to die in hostile terrain
Mexicans meet separated family members through the US-Mexico border fence in Tijuana.

Tuesday 4 October 2016 13.00 EDT Last modified on Friday 11 November 2016 06.29 EST
Fifteen-year-old Sergio Hernandez Guereca and three teenage friends ran across the trickle of water in the concrete riverbed that is the Rio Grande, which marks the US–Mexico border, on a cloudy, hot June day in 2010. The river, which runs between El Paso and Juárez, is only centimetres deep and 15 metres wide at the border, because the US diverts most of the water into a canal before it reaches Mexico. The audacity of the boys’ run, in broad daylight in one of the most heavily patrolled spots along the border, roused bored pedestrians inching along the Paso del Norte Bridge towards the checkpoint. Several turned on their phone cameras to record the brazen act. The videos and the searing images of the aftermath momentarily flooded the media, with channels from CNN to Univision showing the footage.

Exactly what Sergio and his friends had in mind is unclear. Even at their young ages, they had to know that an agent would arrive within seconds of their shoes getting wet. Maybe they were a diversion for some other crossing nearby, or had a small package to drop for a smuggler, or, as their families would suggest later, were just doing something stupid to get their adrenaline pumping. They were teenage boys, after all.

As soon as they reached the fence on the US side, they were forced to retreat. Border patrol agent Jesus Mesa Jr ran in from the north with his gun already drawn. Sergio and two other boys easily evaded Mesa and jogged back across to the Mexican side. The fourth boy put his hands up and was detained. Seeing this, Sergio and his two friends picked up rocks and threw them at Agent Mesa. The detained boy fell to the ground; Agent Mesa dragged him by his shirt collar a few metres toward the Rio Grande, keeping his gun pointed into Mexico at the boys, who were at least 20 or 30 metres away.

Border patrol agents detain people crossing into the US in Roma, Texas.
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Border patrol agents detain people crossing into the US in Roma, Texas. Photograph: John Moore/Getty Images
Sitting in an empty Catholic church in El Paso a few months later, María Luisa (not her real name), a sprightly and energetic 80-year-old woman who resides in El Paso but regularly travels across the bridge to visit family in Juárez, described what happened next. “It was such a long distance,” she said exasperatedly, using her hands to point to either side of the cavernous chapel. “The border patrol was here, the boy was there. It was so far apart. How can you compare a man who has been trained to kill and this young boy, with rocks?”

Agent Mesa fired twice across the border into Mexico. Pop, pop. Then a brief pause, followed by another pop. Pedestrians on the bridge gasped and screamed. “Idiota,” one woman said. Sergio staggered a few metres and fell beside the pylon of a railway bridge. In the photos, the pool of blood around the wound in Sergio’s head is dried and congealed on the concrete riverbed.

The US–Mexico border that took the life of Sergio Guereca is a microcosm of a global change, its increased militarisation not in response to a military threat but focused entirely on preventing the movement of civilians.

In 1989 there were 15 border walls globally; today there are 70. Last year, countries as diverse as Austria, Bulgaria, Estonia, Hungary, Kenya, Saudi Arabia and Tunisia announced or began work on new border walls. There were a record 5,604 deaths at borders, according to the International Organisation of Migration, and 65 million people displaced by conflict. These trends continued in 2016 with Bulgaria and Hungary expanding their fences, Pakistan building a fence on its Afghan border, and Britain paying for a wall in Calais to keep migrants away from the road to the channel tunnel. Border walls are also a central issue in the US presidential campaign, with Donald Trump proposing to build a “beautiful wall” on the remaining 1,300 miles of the US-Mexico border that are not yet fenced.

A policeman on lookout at the Hungary- Serbia border fence ... in 1989 there were 15 border walls globally; today there are 70.
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A policeman on lookout at the Hungary- Serbia border fence ... in 1989 there were 15 border walls globally; today there are 70. Photograph: Laszlo Balogh/Reuters
The current route of the frontier was established in 1848 and 1853 with the signing of the Treaty of Guadalupe Hidalgo and the Gadsden Purchase at the end of the Mexican–American war. The expansionary war inaugurated the idea that the Anglo-Saxon people of America had a manifest destiny to expand the US across the continent, from sea to shining sea. About half of Mexico’s territory was transferred, including large sections of Arizona, California, Colorado, Nevada, New Mexico, Utah and Wyoming. At the time, these arid and sparsely populated lands were still not firmly under the control of the Mexican state. They included a population of 200,000 Native Americans (or, as the treaty refers to them, “savage tribes”), and 100,000 former Mexican citizens, 90% of whom decided to become US citizens; the rest relocated to the Mexican side of the new border.

In the years after the war, the border was marked on maps but not necessarily on the ground. It was not until the 1890s that the border was marked with boundary stones. The US did not create a border patrol agency until 1924, the same year Congress passed sweeping restrictions on Asian and southern European immigration.

In the early days the border patrol was small and underfunded. There were initially 450 agents, who provided their own horses and uniforms. Most were stationed at the Canada border, where Asian migrants were more likely to cross. Over the years, the mission shifted to patrolling the Mexico border, but as recently as 1990 it was a small force of just over 3,000 agents. Without the resources or infrastructure to close the border completely, the border patrol allowed migrants to cross before detaining them on the US side. They were then usually released back to Mexico without charges.

In the mid-1990s, in response to criticism of its methods, the border patrol implemented a new deterrence approach. Operation Hold the Line in El Paso and Operation Gatekeeper in San Diego fenced critical sections of the border and deployed hundreds of agents. The number of crossings was cut to almost zero in the immediate areas of the deployments, each less than 15km (a little over nine miles) long. Migrants and smugglers simply relocated to another section. Nevertheless, the localised success demonstrated that fences and larger deployments could secure the border.

US border patrol trainees on the firing range ... an influx of war veterans has brought a military ethos to the policing job.
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US border patrol trainees on the firing range ... an influx of war veterans has brought a military ethos to the policing job. Photograph: Jeff Topping/Reuters
Then 9/11 happened. The attacks and subsequent fear of terrorism were used to justify substantial increases in hiring at the border patrol. Resources were focused on densely populated and highly trafficked areas, with the goal of discouraging crossings by forcing migrants into remote and dangerous deserts. By 2010 the border patrol had more than 20,000 agents. In order to hire such a large number of agents quickly, it removed some previous requirements, such as passing a polygraph exam, and drew heavily on veterans from the wars in Iraq and Afghanistan – they make up 28.8% of agents. The lower standards, combined with the influx of veterans, altered the atmosphere at the agency, bringing a military ethos to the policing job. Closely related to the funding increases was the emergence of a homeland security industry in which military suppliers repurposed weapons, surveillance technologies and vehicles for use inside the US.

In 2012 the US government spent $18bn on immigration policing – more than it spent on all other federal law enforcement combined, including the FBI ($8bn), the Drug Enforcement Administration ($2.88bn), the Secret Service ($1bn), and the Bureau of Alcohol, Tobacco, Firearms and Explosives ($1bn). Homeland Security Research, an industry analysis firm, estimates the sector will be worth an astounding $107.3bn by 2020.

In the past, most migrants detained at the border were quickly processed and voluntarily repatriated to Mexico, often within a few hours of being caught. This was convenient for the border patrol, which had neither the staff to process paperwork nor the space to house thousands of migrants in detention facilities. It was also an acknowledgment that the vast majority of migrants at the border were poor workers, not smugglers or criminals. As the staffing increased and migrant detention facilities were privatised, the government began to detain migrants, charge them with misdemeanours for their first offence and felonies for their second, and then formally deport them. Before 1986 there were rarely more than 20,000 deportations a year; by the mid-2000s, the number was 400,000 a year. The number of migrants in detention facilities increased from 85,000 in 1995 to 440,000 in 2013. Surprisingly, more people have been deported from the US during the Obama presidency than during any previous administration.

The full force of modern military technology is being directed towards migrant workers looking for better opportunities ... family members touch through the border fence in San Diego, California.
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The full force of modern military technology is being directed towards migrant workers looking for better opportunities ... family members touch through the border fence in San Diego, California. Photograph: John Moore/Getty Images
Meanwhile, new border infrastructure substantially expanded the enforcement area. This includes nine Predator drones – the largest fleet used in US domestic airspace – that patrol the south-western border, hi-tech surveillance systems known as “smart borders” that use sensors and cameras to monitor movement at the border, and ground-penetrating radar designed to detect subterranean tunnels (the border patrol has found more than 150 since the 1990s). There were no federal fences on the border prior to the short sections built for operations Hold the Line and Gatekeeper, but today, 1,070km (670 miles) of the 3,169km (1,970 miles) border are fenced against pedestrians or vehicles. The metal mesh pedestrian barrier is 6.4m (21ft) high and extends 1.8m (6ft) into the ground. These efforts still leave two-thirds of the border with Mexico unfenced.

The militarisation of the border has resulted in far too many stories similar to that of Sergio Guereca’s killing. From 2010 to 2015, US border patrol agents shot and killed 33 people. These killings became an issue in the summer of 2014 with the firing of internal affairs chief James Tomsheck. The border patrol stated that it fired Tomsheck for not investigating killings, but Tomsheck alleged his sacking was part of a cover-up.

Internal affairs chief James Tomsheck alleges his sacking was part of a border killings cover-up.
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Internal affairs chief James Tomsheck alleges his sacking was part of a border killings cover-up.
Photograph: Alex Brandon/AP
In an interview with National Public Radio, Tomsheck stated that he believed 25% of the fatal shootings were suspicious: “Some persons in leadership positions in the border patrol were either fabricating or distorting information to give the outward appearance that it was an appropriate use of lethal force when in fact it was not.” Similarly, a 2014 report by the American Immigration Council found that of 809 reports of abuse between 2009 and 2012 – and reports are very rare due to the subordinate position of many migrants – no action was taken in 97% of cases.

In media interviews, Tomsheck blamed the culture of the border patrol; its agents thought of themselves as part of the military. “The phrase was frequently used – a ‘paramilitary border security force’ or a ‘paramilitary homeland security force,’” said Tomsheck. In response to criticism, the border patrol issued revised guidelines in May 2014 that state that agents can use deadly force when there is a “reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer/agent or to another person”.

In April 2015, the fifth district US court of appeals ruled against a civil suit by Sergio Guereca’s parents because “a Mexican citizen standing in Mexico” has no standing in a US court. The Guereca family attorney, Marion Reilly, summed up the ruling: “So the court has ruled that it was appropriate for the agent to kill an unarmed teenager based on his nationality – don’t kill him if he is a US citizen, but fire away if he is a Mexican.”

Unfortunately, direct violence, including killings by the border patrol and on the Mexican side, as cartels work to solidify control over profitable smuggling routes, does not even scratch the surface of the violence that surrounds the US–Mexico border. The border patrol has recovered more than 6,000 bodies there since the 1990s, deaths attributable to the construction of the border wall and the massive border patrol presence. Migrants are funnelled to more dangerous and remote locations, just like migrants at the edges of the EU. Instead of crossing in a city, migrants are making the arduous journey through the deserts of Arizona, hiking 50 or more kilometres through arid and desolate terrain. According to the first National Border Patrol Strategy document, released in 1994, that was the goal: “The prediction is that with traditional entry and smuggling routes disrupted, illegal traffic will be deterred, or forced over more hostile terrain, less suited for crossing and more suited for enforcement.” Put another way, the official border patrol strategy was to create conditions that would cause more migrants to die in hostile terrain, in order to deter other migrants from making the trip.

An agent scans the US-Mexico border at Sunland Park, New Mexico ... many thousands of migrants have perished in hostile terrain.
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An agent scans the US-Mexico border at Sunland Park, New Mexico ... many thousands of migrants have perished in hostile terrain. Photograph: John Moore/Getty Images
With the increased enforcement, crossings and migrant deaths in California declined, while those in Arizona surged. The Tucson, Arizona coroner’s office has seen a twentyfold increase in the number of migrant bodies found each year since the 1990s. Migrants do not bring enough food and water, often because smugglers, who do not want to be slowed down by the extra weight, tell them the trip is not very far. The harrowing result is documented in books such as The Devil’s Highway by Luís Alberto Urrea, which tells the story of 26 migrants who attempted to enter the US through the Arizona desert in May 2001. Only 12 survived. Leanne Weber and Sharon Pickering of the Monash University criminal justice programme estimate that there are two additional deaths for every recovered body, since remains are quickly obscured by shifting sands.

In line with the global trend, this military build-up has not been directed towards an existential threat to sovereignty, such as an invasion by a neighbouring army. Instead, the full force of modern military technology is oriented toward smugglers profiting from different regulations on either side of the border, and migrant workers looking for better opportunities. The US border patrol operates as if it is part of the military; the actual US military plays a significant role in internal policing at the border. In the emerging security state, privileges are maintained by restricting movement through violence.

• Extracted from Violent Borders: Refugees and the Right to Move by Reece Jones, published by Verso £16.99. To order a copy for £13.93, go to bookshop.theguardian.com or call 0330 333 6846. Free UK p&p on online orders over £10. A £1.99 charge applies to telephone orders.

•Reece Jones will be speaking at Sutton House, London E9 on Monday 10 October with Daniel Trilling and Rebecca Omonira-Oyekanmi and at the Frontline Club, London W2, on Tuesday 11 October.
https://www.theguardian.com/us-news/201 ... tiful-wall



Amy Howe Reporter and Independent Contractor
Posted Tue, February 14th, 2017 6:16 pm

Argument preview: Justices take on issues arising out of cross-border shooting
Image
Portrait of Sergio Adrian Hernandez Guereca, 15 year - old who was killed yesterday by a Border Patrol agent pictured at his graduation from the secundaria. PHOTO COURTESTY OF THE HERNANDEZ GUERECA FAMILY
Sergio Hernández at his elementary school graduation (Courtesy of the family of Sergio Hernández)

In any context, the case of Hernández v. Mesa would be an important one: The parents of Sergio Hernández, a Mexican teen shot by a U.S. Border Patrol agent while standing on Mexican soil, are seeking to sue the agent responsible for their son’s death in U.S. courts. But with the United States’ relationship with Mexico already strained in the wake of the Trump administration’s announcement that it plans to build a wall along the U.S.-Mexico border – and have Mexico reimburse the U.S. for the cost of construction – the lawsuit filed by Jesus Hernández and his wife, Maria Guadalupe Guereca Bentacour, takes on even more significance. Supporting Mesa, the federal government insists that allowing suits like this one could “significantly disrupt the ability of the political branches to respond to foreign situations involving” the U.S.’s national interest, while the Mexican government – supporting the parents – suggests that shutting the lawsuit down could harm U.S.-Mexico relations.

Just as the United States and Mexico disagree about how this case should be resolved, Hernández’s parents and Mesa tell divergent stories about what actually happened on June 7, 2010. Hernández’s parents contend that the 15-year-old was fooling around with his friends in the culvert between El Paso, Texas, and Juarez, Mexico. The group was, they say, “playing a game in which they dared each other to run up the culvert’s northern incline, touch the U.S. fence, and then scamper back down.” As Hernández was running away from the fence back toward Juarez, on the Mexican side of the border, Jesus Mesa fired at him from approximately 60 feet away, on the U.S. side of the border. Mesa’s shot struck Hernández in the head, and he died on the spot.


Mesa does not dispute that he shot Hernández from the other side of the U.S.-Mexico border. But he portrays Hernández as far less innocent than his parents suggest, noting that – according to U.S. Department of Justice records – Hernández “had been arrested twice before for alien smuggling and had been given voluntary returns to Mexico” because he was a juvenile. A review of the shooting incident, Mesa contends, found that his “use of force was result of Hernández and the other individuals surrounding him and throwing rocks at him while refusing his verbal commands to stop.” Moreover, he adds, a DOJ investigation concluded “that the shooting took place while alien smugglers, including Hernández, unsuccessfully attempted an illegal border crossing and began to hurl rocks from close range at Agent Mesa while he was attempting to detain a suspect.”

The justices will not determine which of these accounts is correct. Instead, the question before the court is whether – assuming their account is correct – the parents’ lawsuit in U.S. courts can go forward at all. A federal district court dismissed the lawsuit, which alleged that Mesa had violated both the Fourth Amendment, which protected Hernández from being the victim of unjustified and lethal force, and the Fifth Amendment, which gave him a right not to be deprived of his life without due process of law. A three-judge panel of the U.S. Court of Appeals for the 5th Circuit would have allowed the parents to bring at least some of their claims, but the full 5th Circuit reversed that ruling. Hernández’s parents then asked the Supreme Court to weigh in, which it agreed to do last fall.

There are three main issues at play before the Supreme Court now. The first centers on whether the Fourth Amendment’s bar on unjustified deadly force applies to a scenario like this one, when the victim of the shooting is outside the United States, and how courts should make that determination.

Hernández’s parents argue that courts should use a “functionalist” approach, in which they look at more than merely whether the United States controls the area in which the conduct occurred. The Supreme Court endorsed such a test in a case called Boumediene v. Bush, they contend, in holding that detainees held at Guantanamo Bay could challenge the legality of their detentions in a U.S. court. Other factors for courts to consider under a functionalist approach include “the citizenship and status” of the person seeking constitutional protection, the place where the alleged constitutional violation occurred, and any “practical obstacles” that would result if a court were to rule that the Constitution applied.

Here, they conclude, all these factors militate in favor of holding that Hernández was protected by the Fourth Amendment. He was an unarmed “civilian teenager from a friendly neighboring nation” who was shot “just steps from the formal boundary line” between the United States and Mexico. And although Mesa was in the United States when he shot Hernández, the cities of El Paso and Juarez are “inextricably linked” – for all intents and purposes, a “single metropolitan area” regardless of nationality. Moreover, the parents maintain, allowing their lawsuit to go forward will not create any “practical obstacles.” Border Patrol agents are already barred from using deadly force except in very specific and limited circumstances, so neither the agency’s policy nor the behavior of agents themselves will have to change. Finally, because the Border Patrol is “a permanent presence at the border,” controlled only by the executive branch of the federal government, the U.S.’s relationship “with Mexico would be improved, not hurt, by extraterritorial application.”

Mesa and the federal government counter that the Supreme Court’s decision in Boumediene rested on the fact that the United States has “de facto sovereignty” over Guantanamo Bay. Any “functionalist” test that the Boumediene court might have articulated does not extend to cases – like this one – in which “the United States clearly exercises no power, control, or authority over the area/territory where the incident complained of occurs.” Instead, they argue, this case is directly governed by Verdugo-Urquidez v. United States, the Supreme Court’s 1990 decision holding that the Fourth Amendment does not apply to the search and seizure of a Mexican citizen’s property in Mexico.

The second question before the court is whether, even if Mesa did violate Hernández’s rights under the Fifth Amendment, he is nonetheless entitled to immunity from suit – an inquiry that turns on whether, at the time of the shooting, it had been “clearly established” that Mesa’s actions were unconstitutional. For Hernández’s parents, this is a question that is easily answered: “Here,” they stress, “no reasonable officer in Mesa’s shoes will have thought it lawful to open fire on an unarmed civilian posing no threat to no one.” Rather, they argue, Mesa’s conduct “plainly violates even the most permissive standard for exercising deadly force on unarmed civilians—a constitutional norm that has been clearly established for decades.” Under this test, they suggest, the fact that Hernández was not a U.S. citizen carries no weight, because courts should make their determinations based on the information that was available to the official being sued at the time of the challenged conduct. Here, Mesa did not know (and could not have known) whether Hernández was a U.S. citizen.

Not surprisingly, Mesa and the federal government see things very differently. In the government’s view, whether Mesa has immunity hinges on whether a reasonable officer in Mesa’s place “would have known that his actions violated the Fifth Amendment, where the officer did not know Hernández’s nationality with certainty but had no reason to believe he was a U.S. citizen.” If anything, Mesa alleges, he could have reasonably inferred that Hernández was not a U.S. citizen, because he had been “responding to persons attempting to enter the United States by going through the fence” at the U.S.-Mexico border: When Mesa detained one of the individuals who had been trying to cross the border, others in the group, “including Hernández, began to throw rocks at him.”

The final question – which the justices themselves added to the case – is whether Hernández’s parents can bring their suit under the Supreme Court’s 1971 decision in Bivens v. Six Unknown Named Agents, in which the justices ruled that a plaintiff can bring a private federal action for damages against federal officials who allegedly violated his constitutional rights.

For Hernández’s parents, the answer is an emphatic “yes.” This is precisely the kind of case that the justices had in mind when they ruled in Bivens over 40 years ago, they argue: It provides a remedy for an “egregious” violation of Hernández’s constitutional rights and protects the separation of powers by serving as a check on misconduct by the executive branch. Moreover, none of the “special factors” that might counsel against allowing a lawsuit under Bivens is present in this case, they maintain, because their claims do not involve either national security or a negative effect on foreign relations. If they cannot bring this lawsuit, they contend, they will have no recourse at all “for the government’s unjustified killing of an unarmed fifteen-year-old boy.” And that, they allege, would be virtually unprecedented “outside of the unique military context.”

The federal government, on the other hand, urges the court not to extend Bivens to cases, like this one, involving injuries to non-U.S. citizens outside this country. For over three decades, the government reminds the justices, the court has “consistently refused to extend Bivens liability to any new context or new category of defendants,” even when a failure to do so might leave the would-be plaintiff without any recourse at all. This is particularly true, it observes, when Congress has repeatedly declined to enact laws that would allow the kind of lawsuit that Hernández’s parents have filed. And, it adds, this case illustrates the problems that can arise when courts become enmeshed in “this sensitive diplomatic arena.” Although Hernández’s parents point to Mexico’s support for their lawsuit to suggest that they should be able to bring it, the federal government counters that Mexico’s position only proves its own point, which is that courts are “ill-suited” to make judgments about whether a damages remedy should be made available.

Although the federal government has supported Mesa in this litigation, Hernández’s parents have the support of a group of former federal officials from the U.S. Customs and Border Patrol Agency, which filed a brief in the Supreme Court. They paint a gloomy picture, recounting that, as “security along the border has increased, criminal organizations seeking inroads into the United States have attempted to infiltrate the Border Patrol” – sometimes successfully. Between substandard screening procedures and “inadequate field training” on the uses of force, they tell the justices, incidents like the one that led to Hernández’s death “will likely continue if agents cannot be held accountable in civil suits.” Whether these real-world accounts will play a role in the justices’ legal conclusions may become apparent after next week’s oral argument.

http://www.scotusblog.com/2017/02/argum ... -shooting/
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Re: US/Mexico border "incident"

Postby seemslikeadream » Tue Feb 21, 2017 11:46 am

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A Supreme Court Conundrum

A federal agent standing on U.S. soil shot and killed someone across the border in Mexico. Was the shooting unconstitutional?

By Camille Mott
The fencing on the border between the U.S. and Mexico in Tecate, northwestern Mexico, on Jan. 26.
Mario Vazquez/AFP/Getty Images

On June 7, 2010, 15-year-old Mexican citizen Sergio Hernandez Guereca was playing in the cement culvert that divides Juárez, Mexico, and El Paso, Texas. According to a brief filed by Hernandez’s family, he and his friends dared each other to run up and touch the American border fence. Jesus Mesa Jr., a U.S. Border Patrol agent, grabbed one of the boys. Hernandez fled, crossing back into Mexico before being shot in the head by Agent Mesa, who was still standing on American soil. Hernandez’s family has sued Mesa, alleging that the shooting of their son violated the Fourth Amendment. On Tuesday, the Supreme Court will hear arguments in Hernandez v. Mesa to decide whether the border is “an on/off switch for the Constitution’s protections against the unreasonable use of deadly force.”

Deepak Gupta is the attorney representing the Hernandez family. In the most recent episode of Amicus, Slate’s Supreme Court podcast, Gupta joined Dahlia Lithwick to discuss the unexpected salience of this case under a Trump administration. You can read excerpts from the interview below, or listen to the entire interview with Gupta by clicking on the player beneath this paragraph and fast-forwarding to the 16:40 mark.


On the timeliness of this case:

The court couldn’t have known when it took this case how events in the world were going to play out, but it is eerily relevant to what’s happening with the Muslim-ban litigation. A central argument that the federal government is making here is that these Customs and Border Protection officers in effect should not be subject to judicial review, because if we don’t have a damages action for the family of this victim, there is no other way to get into court to test the constitutionality of what occurred here, and even to get to the question of whether the Constitution even applies. And what the solicitor general’s office is saying is that because this case implicates, in their view, questions of foreign relations, national security, and immigration, the executive’s judgment should be trusted, and the courts do not have a role to play in judicial review. And if that sounds familiar, it’s because it’s precisely the argument that the president’s lawyers have been making in the Muslim-ban litigation that’s played out around the country.

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On Customs and Border Protection:

This is an agency that has become really unaccountable. A lot of its actions either cannot be or are very difficult to test in the courts because it has a law enforcement culture of impunity, because complaints are discouraged, and because officers who commit egregious acts of misconduct are not disciplined—there really has to be some kind of check here. Given current events, I’m hopeful that the court will recognize that that needs to happen. The justices read the newspaper; they watch television. I think they see that there are these raids all across the country, families are being torn apart in ways that really just don’t make much sense. And I’m hopeful that that will affect the way the court sees the case. Of course the court is going to decide this case on the law, but the law is not blind. It takes account of current realities. And so, I think when the Trump administration solicitor general’s office stands up next week and says, “You should trust the executive, and the courts have no role to play,” that argument is going to have a lot less credibility now than it would have had a few months ago.


So an armed US agent, an agent of the US Federal Government, shot at and killed a Mexican citizen, who was in Mexico. That's actually an act of war. More...


On the government’s argument that a win for the Hernandez family might threaten national security:

What we’re asking for here in this case is a pretty modest holding. We’re asking for the court to hold that law-enforcement conduct that occurred entirely on U.S. soil—so it’s domestic conduct, entirely—should be subject to judicial review under circumstances where, if the victim were a U.S. citizen, everyone would agree that there would be an egregious constitutional violation. That is not too much to ask, and it doesn’t mean that we’re constitutionalizing things like drone strikes in Pakistan or all sorts of other national-security operations that I think everyone agrees are within the apex of presidential power.
http://www.slate.com/articles/news_and_ ... _mesa.html
Mazars and Deutsche Bank could have ended this nightmare before it started.
They could still get him out of office.
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