Orrick Appellate Team Files Amicus Brief In Major U.S. Supreme Court Case Involving U.S. Border Patrol Shooting


Raising major public policy questions in one of the most closely watched cases on the U.S. Supreme Court’s docket this term, an Orrick appellate team today filed an amicus brief on behalf of former high-level officials of the U.S. Customs and Border Protection (CBP) Office of Internal Affairs.

The brief was filed in Hernandez v. Mesa, which considers whether a civil suit can be brought against a U.S. Border Patrol agent who was standing in the United States when he shot and killed an unarmed Mexican teenager playing with friends on the Mexican side of the border.

The Supreme Court earlier this year agreed to hear the case, which involves the fatal 2010 shooting of 15-year-old Sergio Hernandez Guereca. The amicus brief urges the Supreme Court to side with the victim’s family and permit a lawsuit to proceed in the U.S. courts against the border patrol agent responsible for the shooting.

The brief outlines significant evidence that these types of cross-border shootings are not isolated occurrences, but rather a predictable consequence of the militarization of the U.S.-Mexico Border and the inadequate screening and training of Border Patrol agents. The Orrick appellate team represents James F. Tomsheck, the Assistant Commissioner of the CBP Office of Internal Affairs from June 2006 to June 2014, and James Wong, the Deputy Assistant Commissioner of the CBP Office of Internal Affairs from December 2008 to December 2011.

The amicus brief notes that Board Patrol agents who unnecessarily shoot and kill people on the U.S.-Mexico border face scant threat of internal discipline or criminal prosecution, leaving civil suits as the only viable option to hold agents responsible for their actions.

“Sergio Hernandez should not have been killed,” the amicus brief states. “He was an unarmed teen who did not pose an imminent threat to the U.S. Board Patrol agent, Respondent Jesus Mesa Jr., who shot him. But because of conditions within the Border Patrol, similar incidents will likely continue to occur if agents cannot be held accountable in civil suits.”

Orrick associate Rachel Wainer Apter served as counsel of record on the amicus brief.  The team also included Partner Kelsi Brown Corkran, Counsel Thomas Bondy, and associate Elizabeth Bentley.