EL PASO, Texas — A judge in West Texas threw out a $25 million wrongful death lawsuit against the U.S. government over the fatal shooting last year of a 15-year-old Mexican boy by a Border Patrol agent but allowed the civil case against the officer to move forward.
Senior U.S. District Judge David Briones in El Paso dismissed the lawsuit against the U.S. government earlier this month because the boy, Sergio Adrian Hernandez Guereca, was on the Mexican side of the Rio Grande when he was shot on June 7, 2010. U.S. law gives the government immunity when such claims arise in a foreign country, Briones noted, and the "harm that the Plaintiffs allege ... was felt in Mexico."
The attorney for the boy's family, Bob Hilliard, said Thursday that he will appeal. He said he not only wants to hold the U.S. government accountable, he also wants to set a precedent on how to proceed on any future shootings across the border.
"This will happen again, and there needs to be direction as to if the Constitution provides protection" to the victims of wrongdoing by federal agents across the border, Hilliard said in a phone interview with The Associated Press.
The shooting occurred under one of the border bridges in El Paso and was recorded by an eyewitness with a cellphone.
U.S. investigators have said Border Patrol agent Jesus Mesa was trying to arrest illegal immigrants who crossed into the U.S when he came under attack from rock throwers. Generally, Border Patrol agents are allowed to use deadly force against rock throwers.
Hilliard has said the teen was unarmed and did not threaten Mesa.
Although Briones dismissed the lawsuit against the U.S., he allowed it to proceed against Mesa.
Randolph Ortega, agent Mesa's lawyer, didn't immediately return a request for comment Thursday.
The El Paso Times, which first reported about Briones' ruling, said Hernandez Guereca's family and Mexican officials have demanded a full investigation and asked Mexican prosecutors to file murder charges against Mesa and seek his extradition.
The law generally protects federal employees from such lawsuits. However, Hilliard said he intends to prove that Mesa's behavior was so egregious that he doesn't enjoy the protection of his employment.
"He shot a teenager in cold blood. Sergio Hernandez did nothing to make agent Mesa fear for his life, he was unarmed; he was retreating following Mesa's command," Hilliard said.
Federal records obtained by the AP after the shooting showed Hernandez Guereca had been arrested several times in 2008 and 2009 for attempting to smuggle illegal immigrants across the Rio Grande. It is a common for human traffickers to use minors to guide immigrants into the U.S. because they can't be charged as adults.
The AP filed Freedom of Information Act requests to the FBI and Customs and Border Protection to obtain employment and disciplinary records for Mesa to determine if there was a pattern of excessive use of force. The agencies declined to release the records, saying the information could "reasonably be expected to interfere with enforcement procedures."
Information from: El Paso Times, http://www.elpasotimes.com