It started out as a kids’ game sometime after 2003: Mexican kids, some of whom were teenagers, are known to gather at concrete culverts marking the shortest span and the shallowest point of the Rio Grande River, separating the U.S. and Mexico border along Texas boundary lines. The kids sometimes throw rocks at the U.S. Border Patrol (“BP”) standing on the U.S. side of the border. The two groups often taunt each other.


Still, it was just a game with the Mexican kids until the adult BP agents escalated the game into “lethal force” confrontations. In his excellent investigative piece, The Green Monster: How the Border Patrol Has Become America’s Most Out-of-Control Law Enforcement Agency, Politico Magazine (Nov./Dec. 2014), Garrett M. Graff said BP then began responding to the rocks with bullets. At least until through 2012, the BP operated with an unofficial policy that “rocking throwing” was lethal force and that lethal force should be met with lethal force. Graff said BP had promoted an attitude among its agents that, “If you throw a rock at me, you’re going to get shot.”


Border Patrol Shoots, Kills Rock Throwers


In a September 2013 report, CBP Use of Force Training and Actions to Address Use of Force Incidents, the Homeland Security Inspector General said BP agents between 2010 and 2014 killed 24 individuals at the U.S.-Mexico border. Ten of those agents offered rock throwing as a justification for their use of lethal force—one of whom was Jesus Mesa, Jr.


In the February 2017 edition of Preview, American Bar Association, Steven D. Schwinn outlined the contours of the Agent Mesa lethal force incident:


“In the summer of 2010, Sergio Hernandez, a 15-year-old Mexican national, was playing with three friends in the concrete culvert that separates El Paso, Texas, from Juarez, Mexico. On the El Paso side, the culvert is a banked incline that leads to an 18-foot fence; on the Juarez side, the culvert banks to a wall topped with a guardrail. A railroad bridge, the Paso Del Norte Bridge, runs over the culvert and connects the United States with Mexico.


“Hernandez and his friends were playing a game in which they dared each other to run up the culvert’s bank on the El Paso side, touch the U.S. fence, and then turn back down to the bottom. The children were playing in plain sight; they were not trying to smuggle themselves or goods into the United States, and they were unarmed.


“As the boys were playing, a U.S. border guard, Jesus Mesa, who was patrolling the border by bicycle, caught one of them. The other two boys, including Hernandez, ran back to a pillar beneath the railroad bridge on the Mexican side of the culvert. As Hernandez peered out from behind the pillar, Mesa, who had remained on the U.S. side of the culvert, drew his firearm and shot Hernandez in the head. Neither Mesa nor any other Border Patrol agents who arrived on the scene offered any assistance to Hernandez; instead, they got back on their bikes and left Hernandez to die where he was shot, on the Mexican side of the culvert.”


Agent Claims Self Defense in Killing of 15-Year-Old Boy


In a March 18, 2018 decision, the Fifth Circuit Court of Appeals described a more pro-Agent version of the events:


“Sergio Hernandez was a 15-year-old Mexican citizen without a family in, or other ties to, the United States. On June 7, 2010, while at play, he had taken a position on the Mexican side of a culvert that marks the boundary between Ciudad Juarez, Mexico, and El Paso, Texas. The FBI reported that Agent Mesa was engaged in his law enforcement duties when a group of young men began throwing rocks at him from the Mexican side of the border. From United States soil, the agent fired several shots toward the assailants. Hernandez was fatally wounded.”


Steven Schwinn’s factual overview of Sergio Hernandez’s killing undermines the factual assertions made by the Fifth Circuit’s March 18 decision. Schwinn explained:


“Federal authorities initially claimed that Mesa shot Hernandez in self-defense. They said that Mesa ‘responded to a group of suspected illegal aliens being smuggled into the U.S. from Mexico,’ and Hernandez ‘began to throw rocks’ at Mesa from across the border. Cell phone videos later revealed that this account was false—that, in fact, Hernandez did not throw rocks at Mesa, that ‘Mesa wasn’t surrounded’ by the boys when he fired, and that Mesa shot Hernandez as he stuck his head out from behind the pillar.


“U.S. and Mexican prosecutors both investigated the shooting, but Mesa was not prosecuted. U.S. officials determined that they lacked jurisdiction, because Hernandez was outside of the United States. Mexican officials charged Mesa, but the United States refused to extradite him.”


US Refuses Charges Because Lack of Jurisdiction


It’s not surprising that Agent Mesa lied about how he killed Sergio Hernandez.


James F. Tomsheck and James Wong have charged that the Border Patrol has long been rife with corruption, misconduct, and excessive force. Both men worked in high level positions in the Border Patrol’s Internal Affairs Division between 2006 and 2014.


Border Patrol Rife with Corruption, “Integrity Problems”


In a December 2016 amici curiae brief, the two men informed the U.S. Supreme Court that there have been scores of incidents where criminal organizations, such as Mexican cartels and street gangs, have infiltrated the BP workforce.


Ronald Hosko, an FBI criminal investigator, agrees with that assessment. He was quoted in the Tomsheck/Wong brief as saying that 10 to 20 of the BP workforce have “integrity problems.”


According to the Homeland Security Advisory Council, Interim Report of the CBP Integrity Advisory Panel (June 29, 2015), the U.S. Customs and Border Patrol (“CBP”) is now the largest civilian law enforcement agency in the country, with 44,000 law enforcement officers, 21,000 of whom are assigned to the Border Patrol. The CBP was created in 2003 in the wake of the 9/11 terror attacks. It became a sub-agency within the Department of Homeland Security (“DHS”) when the former U.S. Customs Service and Border Patrol merged into DHS.


Militarized Border Patrol Engages in War Against “Bad Guys”


Since 2001, the U.S. has invested more than $100 billion in border security and immigration control. Much of these funds have been invested in militarizing the BP, according to Tomsheck and Wong—so much so that BP agents now consider themselves involved in a “war” against criminal organizations operating around and across both side of the U.S.-Mexico border. This war mentality has been fueled by President Trump’s assertions that anyone the BP encounters along the border is “bad guys.” The president’s irresponsible rhetoric only lends credence to the unlawful military mindset that has been pushed for years at the highest levels of DHS encouraging BP agents to “kill the enemy.”


The problem with this militaristic mindset is that is turns the “good guys with guns” into “bad guys with guns.” This was evidenced between 2012 and 2014 when, as reported by Garrett Graff, roughly 170 BP employees, including front line agents, were “arrested or convicted on corruption-related charges,” such as drug smuggling, money laundering and conspiracy.


Border Patrol Employees Charges with Corruption, Smuggling, Sexual Abuse, Murder


Similarly, between 2005 and 2014, approximately 2,170 BP officers were arrested for offenses ranging from domestic violence to drunk driving. One of the worst of these arrests involved a BP agent in McAllen, Texas who, according to Graff, intercepted three Honduran women in March 2014—a mother, her 14-year-old daughter and another teenager—as they tried to illegally enter the country. Instead of arresting them, the agent, Esteban Manzanares, raped the mother before slitting her wrists, then raped her daughter, after which he tried to break her neck, and then took the other teen to another location where he sexually assaulted her.


No Surprise Agent Feel Unrestrained


Against this backdrop, it’s not surprising that Jesus Mesa shot 15-year-old Sergio Hernandez in the head, got on his bicycle, and casually rode away, leaving the teen to die under the railroad bridge. The Arizona Republic reported in April 2015 that since 2005, BP agents had killed 51 people and used force another 385 times. So it is perfectly rational for some media outlets to say “the border is a constitution-free zone for agents who shoot and kill.”


Constitution-Free Kill Zone


Six months after Sergio Hernandez was gunned down for no good reason by an American Border Patrol agent, his family filed a lawsuit against Agent Mesa and other CBP officials alleging that the excessive force provisions of the Fourth Amendment of the U.S. Constitution. The U.S. District Court for the Western District of Texas dismissed the civil rights lawsuit, saying the Fourth Amendment applies only to wrongful acts committed on U.S. soil.


This Fourth Amendment issued worked its way all the way to the U.S. Supreme Court and back to the Fifth Circuit Court of Appeals. That court’s March 18 decision effectively slammed the courtroom door in the face of the Hernandez family and gave Border Patrol agents a “constitution free zone” to kill Mexican kids playing games along the Rio Grande.