Lethal Force on the Border

Sergio Hernandez Guereca’s short life revolved around the U.S.-Mexico border that ultimately led to his death. On June 7, at approximately 6:30 p.m., a U.S. Border Patrol agent shot the 15-year-old Hernandez in the face in Mexican territory between Ciudad Juárez, Chihuahua, and El Paso, Texas.

Most of the facts are not in dispute. A cell-phone video aired on Univision shows four people crossing into U.S. territory over the dried-up riverbed of the Rio Grande. When one is captured by a Border Patrol agent, the others begin to run back to the Mexico side. The Border Patrol agent opens fire across the border.

Sergio fell dead under a bridge. The Chihuahua medical examiner’s autopsy revealed that he died from a gunshot wound to the head. Witnesses stated that the boys threw rocks at the agents, and the Border Patrol agent let loose with at least three direct shots.

Initial U.S. Defensiveness

Reactions came swiftly from both sides. The U.S. government responded defensively, even before the facts were known. An FBI statement released June 8, entitled “Assault on Federal Officer Investigated,” announced an investigation into the “assault,” although there were no reports of any injuries to U.S. agents. The statement asserts that the agents responded to “a group of suspected illegal aliens being smuggled into the U.S. from Mexico.” It further states that “the subjects surrounded the agent” — a contention in no way borne out by the video.

In an almost offhand manner, it adds in paragraph three: “The agent then fired his service weapon several times, striking one subject who later died.”

In an interview with CNN, FBI Special Agents Andrea Simmons noted that she did not know the Border Patrol’s policy on use of deadly force, which was not in any case the FBI’s concern. She dismissed the relevance of the boy’s murder, stating, “This is not a civil rights investigation.” Simmons then went so far as to spin out a purely hypothetical situation in which the immigrants “could potentially overpower him (the agent) and take his gun and shoot him,” a situation that was not even remotely the case.

The next day the State Department responded to a question saying only that “an agent discharged his firearm, killing one of the suspects” and affirming that the only investigation ordered pertained to the assault on the federal agent. The U.S. government has to date refused to identify the agent, stating that he is currently placed on paid leave.

But as anger in Mexico rose over the latest border shooting, the Obama administration realized that it had a situation on its hands and the FBI and Border Patrol justifications of the boy’s death wouldn’t wash. National Security Council Spokesperson Mike Hammer issued a statement promising a “thorough investigation,” saying that “the U.S. government takes such incidents very seriously” while honoring the service of the “men and women who secure our border” and offering no condolences to Mexico or the family.

Attorney General Eric Holder called the killing “extremely regrettable” and ordered a full investigation into the Hernandez Guereca case, along with a similar case of a Mexican citizen murdered by Border Patrol agents just a week earlier. Anastasio Hernández Rojas died after being beaten and attacked with a stun gun by Border Patrol agents on May 28, at the San Ysidro border crossing near San Diego. The San Diego County coroner´s office ruled his death a homicide.

If investigators find that in the latest incident the Border Patrol agent fired at Hernandez Guereca without justification, according to AP reports, “he could be found to have violated Hernandez’s civil rights, which is a crime. The fate of the agent could range from being cleared of all wrongdoing to a charge of homicide.”

Outrage from Mexico

Rep. Silvestre Reyes (D-TX) said the deadly shooting Monday would not affect relations between the United States and Mexico. But Reyes was soon proven wrong.

The Mexican government has filed a diplomatic note of protest, and stories of the killing have filled the media for days. President Felipe Calderon came under attack for jetting off to the World Cup in the aftermath of the shooting and in the midst of the worst drug-related violence on record in the country. Nevertheless, the president issued a statement expressing grave concern because “Sergio Adrian Hernandez was a minor, and he was killed by gunfire while on Mexican territory, in Juárez.” He also related the event to a “surge of violence against Mexicans, which is also associated with the recent rise of anti-immigrant and anti-Mexican expressions in the United States,” alluding to Arizona law 1070 that he openly criticized in his recent visit to Washington.

Mexico’s Foreign Relations Department said it “energetically condemns” the shooting and demands “an expeditious and transparent investigation of the facts and, if applicable, punishment of the guilty.” The department continued: “Mexico is aware of the existing risks in the region, but, according to international standards, lethal force must be used only when the lives of people are in immediate danger and not as a dissuasive measure.”

The Chihuahua state authorities originally took on the case, but the Federal Attorney General’s office quickly decided to head up the investigation. Attorney General Fernando Gomez Mont told Homeland Security head Janet Napolitano that the “unjustified use of force against our population is unacceptable to the Mexican government.” Some Mexican authorities have called for the extradition of the Border Patrol agent.

The head of the Mexican delegation to the 49th U.S.-Mexico Inter-Parliamentary Group on June 11 opened the meeting addressing his U.S. counterparts: “The Mexican people are terribly offended by these deeds and I know that you are offended and hurt too by the death of the two Mexicans.” The U.S. delegation expressed “its profound condolences” the deaths, but the meeting was tense. Legislators dedicated a moment of silence to the two victims.

Border and international human rights groups have joined the demands for a full investigation and prosecution of the murderers. The London-based Amnesty International stated, “This shooting across the border appears to have been a grossly disproportionate response and flies in the face of international standards that compel police to use firearms only as a last resort, in response to an immediate, deadly threat that cannot be contained through lesser means.”

A Rock-Solid Defense?

Under investigation for two murders in as many weeks, the Border Patrol defense rests on the alleged lethal character of rocks. T.J. Bonner, president of the union representing Border Patrol agents, said Border Patrol agents face frequent rock-tossing attacks that are capable of causing serious injury.

“It is a deadly force encounter, one that justifies the use of deadly force,” Bonner said. Rep. Reyes, an ex-Border Patrol chief and promoter of border militarization, says he used to keep a rock on his desk to illustrate the risk of “rockings.”

But when it comes to real-life death and injury, statistics show that — as in the days of Spanish conquest — stone-hurling simply can’t compete with firepower. Mexico’s Foreign Relations Ministry states that the number of Mexicans killed or wounded by U.S. immigration authorities rose from five in 2008, to 12 in 2009, to 17 just in the first half of 2010. A recent investigation by AP showed that the Border Patrol is one of the safest assignments in the United States — only 3 percent of Border Patrol agents were assaulted last year, mostly by rocks, compared to 11 percent of police and sheriffs deputies, mostly by guns and knives.

By all accounts no protocol for the use of force on the border exists, and agents receive no clear instructions. Yet according to Border Patrol spokesperson Ramiro Cordero, “Every agent is issued a .40-caliber pistol, and available to us is a series of long arms and that includes shotguns and machine guns, and on top of that pepper spray and Tasers.”

Statements on instructions to BP agents in light of the murders are as vague as they are disconcerting. Randy Hill, chief of the Border Patrol in the El Paso sector, “instructed his agents to exercise appropriate restraint without compromising personal safety or national security to avoid another incident,” according to a statement released by El Paso mayor John Cook. If this is as far as the protocol goes, the chances of avoiding another incident appear remote.

The United States and Mexico must develop specific commitments on the use of force. Impunity for brutal and senseless murders of Mexican citizens would be the worst possible message the U.S. government can send to Mexico and the world.

Whose Jurisdiction?

The U.S. government asserts that the killer was on the U.S. side — an assertion that no one disputes. But the bullet flew into Mexico to find its target. Legal experts say that according to U.S. domestic law, Mexico, where the victim was struck, had jurisdiction, but Mexico is not seeking extradition. The case could go to the International Court of Justice, but since 1986 the U.S. government doesn’t recognize compulsory jurisdiction there so could simply opt out of a trial.

“There are serious implications in international law when weapons are fired across boundaries, no matter the provocation, Texas lawyer Ouisa Davis writes in the El Paso Times. These considerations are heightened when stone-throwing from Mexico is countered with deadly force from the U.S. side. We are confronted with a situation where the clash between enforcement policies and our common border dwelling have created a confrontational and violent result — the loss of human life — raising important questions for all border dwellers.”

The family of the slain youth has vowed to pursue a civil lawsuit. But if the wheels of justice don’t turn within the U.S. system, Sergio’s mother, Maria Guadalupe Guereca, probably has it right: “May God forgive them because I know nothing will happen,” she told the Associated Press.

The murders of Sergio Hernandez and Anastasio Hernandez-Rojas must be investigated and prosecuted to send a clear message that undocumented border-crossing is not a capital offence in this country, nor does it cancel out universal human rights and homicide law.

Anti-Immigrant Policies

Policies not only reflect public opinion, they create it. President Obama has decided to spend another $500 million on border security. The message of this policy, which has no relationship to the evidence, is that our border with Mexico is one of the most insecure areas of the country. The subtext is that undocumented immigrants are the reason.

Few people have bothered to break down that false narrative, and many have worked hard to bolster it. Obama’s border plan reportedly channels money toward reducing illegal drug and gun-running. On May 26, two days before Anastasio was Tasered to death, Mexico issued a communiqué to register its concern the additional 1,200 armed National Guard and other beefed-up security measures target immigrants:

“Mexico is confident that the personnel of the National Guard will strengthen the operations to combat transnational organized crime that exists on both sides of the border and… not undertake activities directly connected to the application of migratory laws,” said Foreign Relations Secretary Patricia Espinosa. State Department spokesperson P.J. Crowley felt compelled to reply the next day that the border build-up “doesn’t have to do with immigration,” and reiterated the commitment to immigration reform.

Despite stated intentions, things tend to look different on the ground. Recent studies by the UC Berkeley Law School and others show that, alongside the border build-up, drug prosecutions dropped 20 percent in 2003-2008 and immigration prosecutions — mainly of first-time entries — accounted for over half of federal prosecutions. The Immigration Policy Center concludes, “Disentangling the role of immigration from these serious crimes is important, not only because we have limited resources but because confusing the issues helps to ensure that neither set of problems are solved.”

The growing criminalization and dehumanization of Mexican undocumented immigrants has fomented a legal limbo where human rights, including the right to life itself, fall prey to ill-defined national security concerns. It has fostered a political climate where security forces and vigilantes argue openly that fatal attacks on citizens from other countries in a non-war context are justified simply because they lack a visa. Such governance without respect for basic human rights is nothing but a dangerous lie.

LAURA CARLSEN is director of the Americas Policy Program in Mexico City and a contributor to Foreign Policy in Focus. She can be reached at: (lcarlsen(a)ciponline.org).




Laura Carlsen is the director of the Americas Program in Mexico City and advisor to Just Associates (JASS) .