Customs and Border Protection officers as well as Border Patrol agents have been granted wide discretion as to their use of force during the course of their work. In 2012, CBP’s use-of-force practices drew much criticism after human rights groups denounced the number of deaths and other serious abuses occurring during enforcement operations along the border. In response, three different entities undertook an extensive review of the agency’s use-of-force policies and generated numerous recommendations. The cases in this section illustrate the problematic nature of such wide—and at times unbridled—discretion, which has enabled the use of abusive, excessive, and sometimes deadly force in situations where such force is unwarranted or where alternative response methods are available.
On June 7, 2010, Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican national, was playing with a group of friends on the Mexican side of the border near the Paso del Norte Bridge in El Paso, Texas. The boy and his friends were playing a game in which they ran up the incline of a cement culvert, touched the fence separating the US and Mexico and then ran back down the incline. While they were playing, U.S. Border Patrol Agent Jesus Mesa, Jr. stopped one of Hernandez’s friends, and Hernandez retreated and observed from beneath the pillars of the Paso del Norte Bridge (on the Mexico side). Agent Mesa, standing on U.S. soil, fired at least two gun shots from within the country. One of the bullets hit the boy in the face and killed him.
This case challenges CBP and U.S. Border Patrol’s excessive use of force pursuant to the agency’s “Rocking Policy,” which permits the use of lethal force against persons throwing rocks and other objects in the direction of border patrol agents. Maria Del Socorro Quintero Perez filed a lawsuit against the United States, DHS, CBP, the Office of Border Patrol, and various Border Patrol supervisors and agents in their individual capacities for the wrongful death of her husband, Jesus Alfredo Yañez Reyes.
Mr. Salem brought this damages case against the United States, the Los Angeles Fire Department, and unknown CBP officers. Mr. Salem is a U.S. citizen who is also a citizen of Egypt. An accomplished playwright, 75 year old Salem was at the Los Angeles airport to begin his annual trip to Egypt, where he taught a literature class as an adjunct professor at the University of Cairo. He passed through security without incident, handed over his boarding pass and entered the passenger bridge to board his plane. At that point he was pulled over by an officer he believes was with CBP, who asked to see his passport. When he asked why he had been singled out, he was immediately surrounded by three other officers who forcibly grabbed both of his arms. They searched his carry-on luggage and, after finding nothing objectionable, forcibly escorted him to an interrogation room. There he was questioned for several hours, during which time the officers forced his arm behind his back, breaking it in the process. After about 4 hours of questioning, he was released without being charged. He was in great pain, and a bone in his arm was visibly displaced.
This case challenges the actions of two U.S. Border Patrol agents, who shot dead an unarmed man on the Mexican side of the U.S.-Mexico border in 2012. Nora Lam Gallegos, on behalf of herself and her minor children, brought a lawsuit against the United States and various Department of Homeland Security (DHS) and U.S. Customs and Border Protection (CBP) agents in their individual capacities for the wrongful death of her husband, Guillermo Arevalo Pedraz (“Arevalo”).
On November 3, 2011, Gerardo Lozano Rico, an unarmed Mexican national, was driving along a rural road in Texas when his car was pulled over by two United States Border Patrol agents. After being pulled over, several passengers in Mr. Lozano’s car began to flee and the two Border Patrol officers attempted to apprehend them. After one agent smashed the driver’s side window of the car with a baton, Mr. Lozano attempted to drive away from them. In response, the two agents fired approximately 15 shots into the vehicle, killing Mr. Lozano. The two agents who fired the shots claimed that they had fired in self-defense because the vehicle was coming in their direction. Mr. Lozano’s mother brought suit for unconstitutionally excessive use of force, among other claims.
On February 6, 2015, the district court awarded the plaintiff, Jesus Castro Romo, $497,943 as damages for injuries he suffered when he was shot by a Border Patrol agent. Following a five day trial, the court found that the Border Patrol agent, who was on horseback, caught up with Mr. Castro and others as they were walking through the Arizona desert. Mr. Castro ran from the agent, who pursued him. Upon catching up to him, the agent threatened Castro, yelled obscenities at him, hit him with the horse’s reins, had the horse poke him from behind, and ultimately shot Castro in his lower back. The court credited Mr. Castro’s version of events and rejected as less credible the agent’s version that Castro was about to throw a rock at him—both because the agent changed his story over time and also because the agent previously had been convicted of taking a bribe while working for the Border Patrol.
This civil rights case involves the brazen and lawless killing of a sixteen-year-old boy, J.A., by U.S. Border Patrol Agent Lonnie Swartz. On the night of October 10, 2012, J.A., a Mexican national, was peacefully walking along a street in his hometown of Nogales, Sonora, Mexico. The street on which he was walking, Calle Internacional, runs parallel to the border fence. At approximately 11:30 pm, Agent Swartz, standing on the U.S. side of the fence, opened fire. An autopsy report shows that J.A. was fatally hit with ten bullets. At the time of the shooting, the agents and/or officers were not under threat by J.A. or anyone else standing near him — much less in immediate danger of deadly or serious bodily harm. J.A. death was senseless and unjustified. Plaintiff Araceli Rodriguez filed this Bivens action for monetary damages for the killing of her youngest son, alleging claims under the Fourth and Fifth Amendments to the United States Constitution.
In 2013, following intense public pressure and a letter from sixteen members of Congress calling upon Customs & Border Protection (CBP) to address numerous incidents involving excessive force, CBP undertook a comprehensive review of its use of force policies and practices. As part of this review, CBP commissioned a report from the Police Executive Research Forum (PERF), a non-partisan law enforcement think tank based in Washington, DC. PERF completed its review and issued a 23-page report that was highly critical of CBP’s use of force policies and practices. CBP refused to release the report or disclose PERF’s recommendations, and indicated that it would not adopt those recommendations. In February 2014, the ACLU of San Diego’s Border Litigation Project filed a Freedom of Information Act (FOIA) request with CBP seeking immediate disclosure of the report. CBP failed to respond to the request, forcing the ACLU to file suit May 22, 2014 to compel disclosure.
Laura Mireles has worked at a store on the U.S. side of an international bridge in Brownsville, near the CBP inspection station, since 2005. On November 5, 2012, Ms. Mireles crossed to the Mexican side of the bridge for roughly 15 minutes to pick up keys to lock the store. After she closed the store, CBP Officer Riano stopped Ms. Mireles and searched her car. The officer became agitated and reacted violently when Ms. Mireles asked him about his search of her handbag. He grabbed her with both hands and threw her onto the ground with such force that her jeans ripped open at the knee and she suffered a large knee wound as well as several cuts and abrasions on her elbows; the officer put his full weight on Ms. Mireles’s small frame and handcuffed her so tightly that the fire department later had to be summoned to cut the handcuffs from her wrists. After being treated by paramedics for her injuries, Ms. Mireles was released from custody without being charged with an offense.
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.