Child’s Play
I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…
Nearly a decade ago a Mexican teenager played what seemed a harmless game with his friends at the Rio Grande: run up the embankment on the U.S. side of a dry culvert, touch the border fence, then scramble back to stand, laughing, on the Mexican side.
Sergio Hernández may still have been laughing when U.S. Border Patrol Agent Jesus Mesa
shot the fifteen-year-old Mexican boy in the face.
Today the Supreme Court conservative majority declared there can be no legal vengeance for his homicide. By a five to four vote, the Court threw out the wrongful death lawsuit brought against the agent by the parents of the child, because the injury occurred outside the U.S. border. Though Mesa fired two shots at the unarmed boy from the U.S. side, the bullet that killed him crossed to the other side of the border to do it.
The border agent was indicted for murder by the Mexican government, but the United States refused to extradite him to stand trial. The Justice Department did its own investigation and as is almost always the case with law enforcement declined to charge one of its own. The agent pretended that the boy was throwing rocks at him when he executed the teen, despite cell phone video that showed it wasn’t true. President Trump, of course, has said that lethal force is justified if someone throws a rock at you, so, no matter.
The Trump administration filed a brief in the case arguing that the boys’ parents should not be entitled to money damages because their son was injured outside the United States, if only a few feet outside and by someone firing at him from the U.S. side of the border.
The notorious RBG, in a written dissent, called BS on that argument.
Justice Ruth Bader Ginsburg said that because the border agent committed his act, of firing his weapon, while standing inside the United States, the parents of course should be allowed the remedy of suing in damages for wrongful death. “(T)he fortuity that the bullet happened to strike Hernández on the Mexican side of the embankment,” the Justice wrote, “…should not matter one whit.”
To the Trump administration, of course the death of a Mexican kid does not matter one whit.
This won’t be the last time a border agent fires his or her weapon into Mexico from the safe haven of the United States, given the encouragement from its president.
It wasn’t the first, either.
Justice Ginsburg’s dissent cites: a complaint that a “border agent fired fourteen to thirty bullets across the border, killing a sixteen-year-old boy;” a brief “describing various incidents” of “unconstitutional conduct by border and immigration officers;” another “listing individuals killed by border agents.”
Further, a report of “over eight hundred complaints of…physical, verbal, or sexual abuse lodged against Border Patrol agents between 2009 and 2012” of which “in ninety-seven percent of the complaints resulting in formal decisions, no action was taken.”
This is what is becoming of twenty-first century America. At the border with a wall Jesus Christ would have torn down in a heartbeat — on one side the United States, on the other, Mexico — what separates us is not the wall, but a black hole where empathy should be.