Investigations, Lawsuits Target Alleged Abuse by Border Patrol Agents

A series of investigations and lawsuits seek to shed light on shootings by agents of U.S. Customs and Border Protection (CBP), the agency which includes the U.S. Border Patrol (BP), involving Mexican nationals located across the border on Mexican territory. Asserting civil claims over these incidents has proven difficult, both practically and legally. The CBP and related agencies suffer from a lack of transparency, which makes the discovery process difficult. Courts have been reluctant to exercise jurisdiction over claims by foreign nationals, raising questions about jurisdiction and rights when an agent fires a gun on one side of an international border, and the injury occurs on the other side.

According to the Arizona Republic, BP and CBP agents have been involved in at least forty-two fatal uses of force since 2005. Thirty-eight of those deaths occurred near the U.S.-Mexico border. The Republic describes them as varying from “strongly justifiable to highly questionable.” Four BP agents have died in “direct conflicts with aggressors” in roughly the same timeframe.

Jose Antonio Elena Rodriguez, age sixteen, was shot and killed by BP agents on October 10, 2012. The agents were located in Nogales, Arizona, while Rodriguez was in the Mexican town of the same name. The agents claimed that Rodriguez was throwing rocks at them. Agents are permitted to use deadly force in response to threats, and they treat rocks as a deadly weapon as a matter of policy.

Witnesses at the scene dispute this, claiming that Rodriguez was walking home at about 11:30 p.m. when two men (or four, depending on the witness), ran past him, some of them holding rocks. BP agents allegedly opened fire on Rodriguez by mistake. They shot him at least eight times, and most of the bullets were in his back. His family announced shortly after the shooting that they intended to sue the U.S. government, but they are reportedly still waiting on information from the FBI.

A similar incident occurred in 2010, when a fifteen year-old boy died in Juárez, Mexico, across the border from El Paso, Texas. A BP agent shot Sergio Adrian Hernandez Güereca once in the head, claiming that he had crossed the border illegally into the U.S. earlier, and was throwing rocks at BP agents. Hernandez’s family disputed the BP agent’s account.

The family sued the federal government for wrongful death and civil rights violations under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671 et seq., and the Alien Tort Statute (ATS), 28 U.S.C. § 1350. They sought $25 million in damages. A federal judge dismissed the lawsuit for lack of subject matter jurisdiction, holding that the government retains sovereign immunity for tort claims that arise on foreign soil. Hernandez v. United States, 802 F.Supp.2d 834 (W.D. Tex. 2011).

The decision depends on the conclusion that the tort claim arose in Mexico, where Hernandez died, not the U.S., where the shot was fired. The court held that a tort claim arises in “the place where the injury occurred,” which in this case was Mexico. Id. at 842, quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 705 (2004).

The personal injury attorneys at Lebowitz & Mzhen help people in the Washington, DC area recover their just compensation when they have suffered injuries caused by police brutality, other abuses of official power, and other negligent or unlawful conduct. To schedule a free and confidential consultation to discuss your case, please contact us today online or at (800) 654-1949.

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