Armed Polite Society
Main Forums => Politics => Topic started by: Hawkmoon on February 21, 2017, 11:04:29 AM
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http://www.lifezette.com/polizette/supremes-to-decide-if-foreigners-have-constitutional-rights/
I remember reading about the case at the time. I had no idea it had progressed this far. It seems to me that what's really under debate here is a law enforcement officer's right to use lethal force to defend himself against an armed attack.
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First off, how did that web site not enrage you with all the ads?
https://ballotpedia.org/Hernandez_v._Mesa
http://www.slate.com/articles/news_and_politics/jurisprudence/2017/02/ice_s_crackdown_is_beyond_aggressive_it_s_illegal.html
Agent Mesa shot Hernandez for being an annoying git at the exact border. While that'd be absolute murder charges if a civilian did that, we pretend that since it's LEO it's a bit more murky. Since it's federal LEO, it's even more murky. Basically, they are indeed claiming that it was a righteous shoot because foreign nationals have no rights as well as the border being a "no constitutional rights" zone.
In plain english, lawyers for Mesa are right. Constitution says you have a lot less rights at the border. Agents generally can't summarily execute people (like they did here), but you have virtually no other constitutional rights.
Rights of foreign nationals in foreign lands is an even trickier subject. A number of people would very very much like that to be the case. So they can try to sue or charge Bush with murder for collateral civilian deaths in Iraq. Afghanistan gets ignored, but I'm sure some plucky NGO would pick up that cause too. We've always extended rights to foreign nationals INSIDE the US. Constitution says when citizens gets rights that non-citizens don't. Voting, ability to become President, etc. Since it doesn't say foreign nationals don't get the free speech or due process, they automatically do and should.
It's a tricky subject. I'm inclined to agree with status quo. We don't afford foreign nationals outside of the US rights except for specific circumstances agreed by treaty or law. Granting every person on the planet the same rights as non-citizens in the US would have no benefits and a lot of downsides. Which also sucks because it means Mesa probably will get away with shooting an annoying kid playing games at the US-Mexican border.
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I thought the article said the 15 year old was throwing rocks at him. But the actual facts were not a priority in that article. Where you getting the summary execution stuff?
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I thought the article said the 15 year old was throwing rocks at him. But the actual facts were not a priority in that article. Where you getting the summary execution stuff?
Did the agent use lethal force when their life was in immediate danger?
If yes, self defense.
If no, summary execution.
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Did the agent use lethal force when their life was in immediate danger?
If yes, self defense.
If no, summary execution.
Is even execution a strong enough term for it? I mean, firing a weapon across an international border with the intent to cause harm to a citizen of the country on the other side, without immediate need or the specific direction of one's own government to commit such an act seems like a bit more of a crime.
To take it to the extreme, if some bunch of enlisted men decide to open up with the .50 on random traffic cruising down a Canadian highway visible from the border, is it just reckless discharge, or isn't there some charge more appropriate to attacking a sovereign nation of your own volition while in uniform?
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I understand RevDisk's point. My recollection of the case is spotty, at best. We don't know how big the rocks being thrown were, and we don't know how much of a "threat" they actually posed for Agent Mesa (as opposed to simply being an annoyance).
The attorney I hired to help me fight my town's anti-gun ordinance has commented on more than one occasion that RKBA cases need to be considered carefully because "Bad cases create bad law." It would seem that this might be such a case. It would IMHO be a severe travesty if an isolated bad shoot had the consequence of reversing a couple of centuries of constitutional law.
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To take it to the extreme, if some bunch of enlisted men decide to open up with the .50 on random traffic cruising down a Canadian highway visible from the border, is it just reckless discharge, or isn't there some charge more appropriate to attacking a sovereign nation of your own volition while in uniform?
"Enlisted men" implies military. When the military of one country attacks another country, it's an act of war. Border Patrol are not military, they are civilian law enforcement. When civilians of one country attack another country, depending on the circumstances they are either criminals or terrorists, but it isn't an act of war.
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"Enlisted men" implies military. When the military of one country attacks another country, it's an act of war. Border Patrol are not military, they are civilian law enforcement. When civilians of one country attack another country, depending on the circumstances they are either criminals or terrorists, but it isn't an act of war.
The distinction between military personnel and other armed government employees is something of an American thing.
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If the dead person was in Mexico, one has to wonder what our Extradition treaties are like.
For that matter, if the death occurred in Mexico, why do the US courts have jurisdiction?
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If the dead person was in Mexico, one has to wonder what our Extradition treaties are like.
For that matter, if the death occurred in Mexico, why do the US courts have jurisdiction?
Shooting occurred in America, by American federal employee.
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If the dead person was in Mexico, one has to wonder what our Extradition treaties are like.
For that matter, if the death occurred in Mexico, why do the US courts have jurisdiction?
Jurisdiction for criminal matters lies where the act occurred. So the question here is which act is the one which is the criminal act? Was it the death, or was it the firing of the shot? Seems to me it would be the shot, so jurisdiction would lie on the American side of the border. But, I've not worked on legal issues involving international borders, so my opinion may be fully wrong.
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The distinction between military personnel and other armed government employees is something of an American thing.
Not only American, but the Carabineros in my wife's native country are under the military, so I understand your point. But this case involves the U.S. Constitution, the U.S. Supreme Court, and a U.S, Border Patrol agent, so how other countries do it is of no immediate consequence.
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Jurisdiction for criminal matters lies where the act occurred. So the question here is which act is the one which is the criminal act? Was it the death, or was it the firing of the shot? Seems to me it would be the shot, so jurisdiction would lie on the American side of the border. But, I've not worked on legal issues involving international borders, so my opinion may be fully wrong.
But it's what happened on the other side of the border that made it a homicide; if he'd just popped off a couple rounds into the Mexican dirt, it likely wouldn't have been anything worth charging.
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Did the agent use lethal force when their life was in immediate danger?
If yes, self defense.
If no, summary execution.
I don't know what state you live in, but here in Texas lethal force is allowed to defend against death or serious bodily injury. It doesn't just have to be life in danger. I recently heard a lawyer summarize serious bodily injury as anything that would make you go to the hospital as opposed to just someone punching you in the stomach. Courts here have defined damage from fists as serious bodily injury.
I haven't read through this stuff to know what the teenager was throwing or if he was throwing anything at all that someone could use to justify the shoot. I will have to look later.
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But it's what happened on the other side of the border that made it a homicide; if he'd just popped off a couple rounds into the Mexican dirt, it likely wouldn't have been anything worth charging.
And that's where I got hung up in my head, and was why I threw on the disclaimer. Can't find anything similar in quick research.
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I don't know what state you live in, but here in Texas lethal force is allowed to defend against death or serious bodily injury. It doesn't just have to be life in danger. I recently heard a lawyer summarize serious bodily injury as anything that would make you go to the hospital as opposed to just someone punching you in the stomach.
The standard is "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." If the kid was chucking rocks from any real distance, he better have had real MLB potential to claim that any rock he could actually throw met that standard.
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If rocks WERE being thrown (which doesn't seem to be a matter of debate) . . . unless they were pea gravel, the possibility of serious bodily injury was present.
And anyone who says otherwise should be willing to prove it by submitting to a big hunk of rock or two getting bounced off THEIR noggin.
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If rocks WERE being thrown (which doesn't seem to be a matter of debate) . . . unless they were pea gravel, the possibility of serious bodily injury was present.
And anyone who says otherwise should be willing to prove it by submitting to a big hunk of rock or two getting bounced off THEIR noggin.
Just try shooting someone for throwing rocks at you from 100+ feet away and see how that goes in court.
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If rocks WERE being thrown (which doesn't seem to be a matter of debate) . . . unless they were pea gravel, the possibility of serious bodily injury was present.
And anyone who says otherwise should be willing to prove it by submitting to a big hunk of rock or two getting bounced off THEIR noggin.
Uhm. Specifically had training for this. Because sick individuals are not above training kids to throw rocks at soldiers, hoping you cap one on video. The smarter evil types occasionally mix in a grenade as well, to incentivize you to shooting kids for PR value. Then they plant a stuffed animal near the corpse. Or you just have kids being stupid.
Yes, rocks CAN be a dangerous weapon. They don't tend to LOOK super dangerous on video. There's also the disparity of rock vs firearm. It's a known issue. Yes, people (prosecutors, juries, media, media viewers, etc) are extremely bad at making realistic risk valuation. But if you don't understand the factors beyond the law, you will be bit. Hard. Shooting a kid is viewed much harsher than shooting an adult. Shooting a woman is viewed much harsher than shooting a man. This is damn universal, even if it has no basis in law.
If you want to exercise your right to carry firearms, you had BEST know both the law AND 'best practices'.
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Just try shooting someone for throwing rocks at you from 100+ feet away and see how that goes in court.
Can I hurl some rocks at you from 100 feet away and see how fast you decided that they hurt?
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Can I hurl some rocks at you from 100 feet away and see how fast you decided that they hurt?
"Hurt" is not the standard for use of deadly force in response. "Substantial risk of death,[...] serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ" isn't a normal expectation from a hand-thrown rock at 100 feet. 10 feet, sure. 60 feet maybe; I've been hit by a pitch before, and while I'm sure Nolan Ryan would have done some serious damage, I'd be hard pressed to consider some bruised ribs from a pretty good local little league pitcher a justification for deadly force.
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"Hurt" is not the standard for use of deadly force in response. "Substantial risk of death,[...] serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ" isn't a normal expectation from a hand-thrown rock at 100 feet. 10 feet, sure. 60 feet maybe; I've been hit by a pitch before, and while I'm sure Nolan Ryan would have done some serious damage, I'd be hard pressed to consider some bruised ribs from a pretty good local little league pitcher a justification for deadly force.
What about the loss of any eye?
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What about the loss of any eye?
What part of "substantial risk" are you not getting?
Set up a pair of ping pong balls at 100 feet and see how many rocks it takes you to hit one. Also look at the velocity of the rocks at that range and tell me what sort of imbecile would stand there staring at the incoming rocks long enough to get hit in the eye.
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What part of "substantial risk" are you not getting?
Set up a pair of ping pong balls at 100 feet and see how many rocks it takes you to hit one. Also look at the velocity of the rocks at that range and tell me what sort of imbecile would stand there staring at the incoming rocks long enough to get hit in the eye.
Only takes one first of all.
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Only takes one first of all.
Only takes one pellet of birdshot too. Guess we should all be carrying combo guns in dove season to snipe anyone careless enough to let their shot drop near us.
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What part of "substantial risk" are you not getting?
Where are you getting the words "substantial risk" from? We have 50 states, and then we have federal law. I don't claim to have read the self defense laws of even half the states, but I have read a number of them and I have not yet encountered the words "substantial risk." The usual language is something along the lines of "in danger of suffering death or grievous bodily injury."
The other thing you're either forgetting or choosing to overlook is that ALL the states' self defense/lethal force laws are based on the victim's (meaning the person who engaged in the self defense act) perception of the risk of death or grievous bodily injury. In other words, you don't really have to be in danger (that punk trying to stick you up doesn't have a real gun, it's an unloaded airsoft replica), you only have to reasonably believe that you're in danger ("It looked like a real gun when he pointed it at me, your Honor").
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The other thing you're either forgetting or choosing to overlook is that ALL the states' self defense/lethal force laws are based on the victim's (meaning the person who engaged in the self defense act) perception of the risk of death or grievous bodily injury. In other words, you don't really have to be in danger (that punk trying to stick you up doesn't have a real gun, it's an unloaded airsoft replica), you only have to reasonably believe that you're in danger ("It looked like a real gun when he pointed it at me, your Honor").
There you go; reasonable belief. You're not going to have such an easy time in court if it was a clear squirt gun, and your argument is that it might have been filled with poison. That's about as sensible as going Dirty Harry on kids tossing rocks from a distance.
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:facepalm:
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Just try shooting someone for throwing rocks at you from 100+ feet away and see how that goes in court.
How do you know the kid was 100+ feet away? And what really matters here is the Border Patrol Use of Force Policy, not state law.
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D. Use of Deadly Force
1. Deadly force is force that is likely to cause serious physical injury or death.
2. The Department of Homeland Security Policy on the Use of Deadly Force
governs the use of deadly force by all DHS employees.
3. Authorized Officers/Agents may use deadly force only when necessary, that is,
when the officer/agent has a reasonable belief that the subject of such force
poses an imminent danger of serious physical injury or death to the officer/agent
or to another person.
a. Serious Physical Injury - Injury which creates a substantial risk of death or
which causes serious disfigurement, serious impairment of health or serious
loss or impairment of the function of any bodily organ or structure or involves
serious concussive impact to the head.
https://www.cbp.gov/sites/default/files/documents/UseofForcePolicyHandbook.pdf
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Video of the shooting:
https://www.youtube.com/watch?v=oa2LjgL40KE
Tomo News version:
https://www.youtube.com/watch?v=huGKQFnM8E8
CBS news:
https://www.youtube.com/watch?v=DCh-9sMkVPU
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There you go; reasonable belief. You're not going to have such an easy time in court if it was a clear squirt gun, and your argument is that it might have been filled with poison. That's about as sensible as going Dirty Harry on kids tossing rocks from a distance.
Wait! I misread the article. Did it say the Mexican kid was pointing a clear squirt gun at the Border Patrol Agent? I could have sworn I read "rocks."
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Wait! I misread the article. Did it say the Mexican kid was pointing a clear squirt gun at the Border Patrol Agent? I could have sworn I read "rocks."
:rofl: