Schnader Team Helped Clarify Protections Afforded Foreign Nationals for Injuries Occurring Outside the United States

Schnader helped obtain a victory on June 30, 2014 for a coalition of civil rights groups in Hernandez v. United States, et al., No. 11-50792, in the United States Court of Appeals for the Fifth Circuit. The case involved Sergio Hernandez, a 15-year old Mexican boy, who, according to the allegations of the complaint, was playing with friends at the U.S./Mexico border near Texas. A Border Patrol agent, Jesus Mesa, detained one of the boys, and Hernandez retreated to an area under a bridge on the Mexican side of the border to observe. The Border Patrol agents alleged that the boys were throwing rocks at them. Mesa fired at least two shots across the border at Hernandez, killing him. At all times, the boys remained on Mexican soil and Mesa remained on U.S. soil. 

Hernandez’s family brought a civil rights action in the United States District Court for the Western District of Texas against the U.S., Mesa, and his supervisors. The District Court dismissed, holding that although Mesa acted from the United States, his victim was a foreign national and the shooting’s effects were “felt in Mexico.” The Fifth Circuit affirmed as to the United States and the supervisors, but reversed as to Mesa. 

Schnader represented amici Border Network for Human Rights, Paso del Norte Civil Rights Project and the Southern Border Communities Coalition (a coalition of approximately 60 border advocacy groups). The amicus brief brought to the Court of Appeal’s attention the numerous human rights violations, including injuries and deaths that have occurred at the U.S./Mexico border. It argued that the District Court’s rigid territoriality approach in effect created a “lawless border.” In reversing the district court’s opinion, the Court cited to the amicus brief for documentation of the abuses that have occurred at the border, and also adopted some of its reasoning, including that the District Court’s “territorial approach” would allow border agents to establish “zones of lawlessness.”

The amici also pointed out (and the Fifth Circuit agreed) that the district court’s opinion would lead to the perverse result that, had Hernandez illegally crossed the border into the United States, he would have had a cause of action in the U.S. courts – but because he remained in Mexico, he did not. The appellate court described the case as follows: “if ever a case could be said to present an official abuse of power so arbitrary as to shock the conscience, the Appellants have alleged it here.”

The matter was covered extensively in the Mexican and American Southwest press, and received national attention as well. (See NPR Morning Edition, “U.S. Court: Mexican Teen Killed By Border Patrol Had Rights.” Nancy Winkelman and former Schnader attorney H. Justin Park represented the civil rights amici group in the Fifth Circuit Court of Appeals.