By Alejandro Martinez-Cabrera
El Paso Times
EL PASO, Texas — U.S. Department of Justice officials on Tuesday will meet with the parents of a Mexican teen who was shot and killed by a U.S. Border Patrol agent in 2010.
Attorney Bill Hilliard said the officials will travel from Washington, D.C., to El Paso to discuss the legally complex incident and explain to his clients, Jesus Hernández and Marca Guadalupe Huereka, the parents of Sergio Adrián Hernández Huereka, why they were unable to prosecute Border Patrol Agent Jesus Mesa Jr., who shot the 15-year-old boy near the Paso del Norte Bridge in June 2010.
The visit will be a follow-up to an April 27 letter, written in both English and Spanish, from the Justice Department’s Civil Rights Division to Hernández Huereka’s parents.
In the letter, the division’s criminal section chief, Mark Kappelhoff, offers the boy’s family his condolences but informs them his office won’t be able to move forward with a criminal case under federal homicide statutes.
The letter outlines in detail federal prosecutors’ work in determining whether they could put together a case against Mesa.
Prosecutors interviewed law enforcement and civilian witnesses, watched video footage of the killing, went through Hernández Huereka’s autopsy, analyzed evidence collected from the scene, and reviewed Mesa’s training, disciplinary and personal records, the letter stated.
In addition, they collected witness interviews from Mexican prosecutors and consulted with the International Boundary and Water Commission about jurisdictional issues.
The FBI also “created a digital reconstruction of the scene and a master recording that synchronized multiple video recordings of the incident into a single digital presentation,” the letter said.
However, the letter stated, the case fell apart because the scope of federal law was limited to prosecuting civil-rights violations committed within U.S. territory.
“In this matter, there is no jurisdiction to pursue a federal civil rights violation, because Mr. Hernández Huereka was not within the borders of the United States when he was shot,” Kappelhoff wrote.
In addition, Kappelhoff said, the case “would still not be viable,” even if it had happened in the U.S. Federal prosecutors did not believe there was enough evidence to prove Mesa “willfully used more force than he reasonably could have believed was necessary under the circumstances.”
“To prove that the (U.S. Border Patrol) agent acted willfully, the government would have to show that he had the specific intent to do something he knew was wrong. Mistake, accident, negligence, misperception, or bad judgment is not sufficient to establish willfulness under this statute,” Kappelhoff said.
Kappelhoff’s letter also said his office couldn’t determine beyond reasonable doubt that Mesa had acted with criminal intent and said the officer could defend his actions on the basis of self-defense.
“Given the vulnerable position of the USBP agent was in — alone, while holding a detained person, with no cover nearby — retreat or seeking cover were not available options. His actions were consistent with USBP policy and the agent’s training,” the letter said.
Hilliard said that the Justice Department officials’ coming visit with Hernández Huereka’s family, a month after sending the letter, was a thoughtful courtesy but that he didn’t think it would help change the minds of officials about their determination not to pursue a case.
“I believe what (DOJ officials) are doing now is being very professional and kind, to show they care about Sergio’s family as people. But do not mistake kindness for collaboration,” he said.
After the department’s determination on the case, the Mexican government sent a diplomatic note to its American counterpart protesting the decision, said a spokesman with the Mexican Consulate in El Paso.
Hernández and Huereka’s attorney Hilliard did not agree with Kappelhoff’s assessment of the case either.
“Their theory is that (the agent) generally felt threatened, so he had a right to shoot. The problem is that he shot a kid between the eyes. He aimed and shot a kid that wasn’t threatening him. You can’t have a general sense regarding your safety and then rely on it to murder someone who’s making you feel unsafe,” he said.
Hilliard said the Justice Department’s decision created a dangerous precedent for cases of transnational aggression involving U.S. law enforcement officers.
“With the Department of Justice’s decision not to prosecute, you are creating a recipe where there will be no consequence for U.S. citizens shooting Mexican nationals as long as Mexican nationals are in Mexico and U.S. citizens are in the U.S.,” he said.
On June 7, 2010, Mesa was patrolling on a bicycle when he came upon a group of boys, included Hernández Huereka. The boys were running up a concrete drainage ditch and touching a chain-link fence on the U.S. side of the Rio Grande near the Paso del Norte Bridge.
Mesa took one of them into custody and, after being pelted with rocks, pulled out his firearm and shot Hernández Huereka twice — once fatally in the head.
Demetrio Guerra, a Border Patrol spokesman in El Paso, said Mesa was placed on administrative leave for three days immediately after the incident before returning to his regular duties. Mesa is still employed by the U.S. Border Patrol, he said.
“As per CBP policy, he was placed in administrative duties after the event occurred. Following that, he was conducting U.S. Border Patrol duties,” he said.
CBP officials could neither confirm nor deny whether an internal investigation on the matter remains open.
The incident became international news after an amateur video of the shooting was recorded with a cellphone and appeared on television and the Internet.
After the shooting, the boy’s family said Hernández Gcereca was a good student who stayed out of trouble. But U.S. officials said Hernández Gcereca had a history of illegally crossing into the U.S.
Hernández Gcereca’s parents first filed a civil lawsuit against Mesa and the U.S. government last year, but Senior U.S. District Judge David Briones dismissed that suit, ruling there are no statutes that would apply in suing the U.S. government because the teenager was shot on the Mexican side of the border.
The second lawsuit was filed immediately after Briones dismissed the first suit. In it, Hernández Gcereca’s parents alleged that Mesa violated the boy’s constitutional protections against deadly and excessive force. However, Briones ruled Hernández Gcereca isn’t covered by those protections because he was a Mexican citizen and was in Mexico when the shooting took place.
Hilliard said the family will appeal the decision and has already started the process through the U.S. Court of Appeals for the 5th Circuit and was ready to take the case to the U.S. Supreme Court.
“I feel extremely confident that either the 5th Circuit Court or the Supreme Court will carve out a mechanism in civil law allowing parents to bring a lawsuit like this,” he said.
The Department of Justice officials’ visit will take place a few weeks after Chihuahua Gov. Ccsar Duarte met with Hernández Huereka’s parents and called for Mesa’s extradition into Mexico to stand trial on a murder charge.
A spokeswoman with the U.S. Department of State said her department could neither confirm nor deny whether an extradition request from a foreign nation had been made. A spokesman with the Mexican Consulate in El Paso said the federal government is studying how to proceed with the issue.
The visit will also come after the United Nations’ High Commissioner for Human Rights called on U.S. officials to cooperate with their Mexican counterparts on the investigations of several slayings allegedly committed by Border Patrol officers, including Hernández Huereka’s case.
Rupert Colville, spokesman for the U.N. High Commissioner for Human Rights Navi Pillay, said his office has been informed that a request from Mexican authorities to begin the process of extraditing Mesa so he could be tried in Mexico has been denied by the U.S. Officials with Mexico’s attorney general’s office did not return calls seeking confirmation.
The High Commissioner for Human Rights “was indeed concerned that, if all this was indeed the case, there was effectively no possibility now for this crime to be investigated anywhere, or for the family to seek redress for Sergio Adrián’s death,” Colville said.
Colville said the High Commissioner for Human Rights has received other reports of alleged use of excessive force by Border Patrol agents, including the deaths of Anastacio Hernandez Rojas, who was allegedly beaten to death in June 2010 near a crossing point into California; Ramscs Barrcn Torres, 17, who was shot at the border with Arizona in early 2011; and Josc Alfredo Yacez Reyes, who was shot at the border between Baja California, Mexico, and California in June 2011.
Colville said international cooperation was especially important in such cases.
“States should facilitate any investigation of that type, especially when it was alleged to be carried out by state agents,” he said.
Bill Brooks, a CBP spokes man in Washington D.C., said he didn’t know whether U.S. authorities had collaborated with their Mexican counterparts, but he stated that “CBP has cooperated fully in all investigations involving the death of this young man.”
Alejandro Martcnez-Cabrera can be reached at a.martinez@elpasotimes.com
Copyright 2012 El Paso Times