The Estate of Anastacio Hernandez-Rojas v. United States

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The Estate of Anastacio Hernandez-Rojas v. United States
No. 3:11-cv-00522-L-DHB (S.D. Cal., Third Amended Complaint filed Mar. 23, 2012)

This case challenges CBP and U.S. Border Patrol’s excessive use of force.  Anastacio Hernandez-Rojas died of a heart attack on May 28, 2010 near the San Ysidro Port of Entry after agents working for the U.S. Border Patrol and Customs and Border Protection beat him and shot him repeatedly with a Taser. Cell phone videos taken by witnesses show Hernandez-Rojas, a Mexican national and long-time San Diego resident, on the ground surrounded by agents and calling out for help.  He was 42 years old.

In this federal lawsuit brought under Bivens, the Federal Torts Claims Act, and the Alien Tort Claims Act, Hernandez-Rojas’s family alleges that his First and Fourth Amendment rights were violated when agents beat him after he asked for help, using excessive force. They also allege that their father’s death has deprived his children of their 14th Amendment due process right to associate with their father.

Eight agents and four supervisors are named as defendants in the lawsuit. They have claimed that using force against Hernandez-Rojas was justified because he posed a threat to the officers.

In September 2014, the district court denied defendants’ motion for summary judgment.  In his order, U.S. District Court Judge M. James Lorenz wrote: “The sheer number of officers available at the scene demonstrates rather strongly that there was no objectively reasonable threat to the safety of any one other than Anastasio.” That decision is currently on appeal to the Ninth Circuit; Plaintiffs have filed a motion in the district court to declare that appeal frivolous. On December 31, 2015, the district court denied that motion, and the matter is stayed pending the resolution of Defendants’ appeal to the Ninth Circuit.

On November 6, 2015 the Department of Justice announced that it would not criminally prosecute the agents involved in his death, a decision that angered his family and border-rights advocates.

On March 30, 2017, the court issued an order approving a $1 million settlement, to be dispersed among Mr. Hernandez-Rojas’s five children.

In March 2016, Hernandez-Rojas’ family filed a complaint against the United States with the Inter-American Commission on Human Rights. The complaint alleged several violations of the American Declaration of the Rights and Duties of Man, including violation of the prohibition against torture, violation of the right to life and liberty, and failure to investigate, prosecute, and provide full reparations. On November 5, 2022, the Inter-American Commission conducted a hearing on the complaint. On February 14, 2023, Hernandez-Rojas’s family submitted a final written observation to the Inter-American Commission. A report with the Commission’s findings is forthcoming.

Documents:

Counsel: Iredale & Yoo, APC

Contact: Julia Yoo | (619) 233-1525

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