Category Archives: Assaults and Use of Excessive Force

Garcia Pleytes v. United States of America

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Garcia Pleytes v. United States of America, No. 2:24-cv-1451 (W.D. Wash., filed Sept. 12, 2024)

On March 30, 2022, Jose Garcia Pleytes was seriously injured by a U.S. Border Patrol (BP) officer on an all-terrain vehicle (ATV) near the Arizona-Mexico border. Mr. Garcia was walking in the desert after having recently entered the United States without inspection. He was approached by Border Patrol agents on ATVs, one of whom hit Mr. Garcia’s lower body with the ATV and completely crushed Mr. Garcia’s right leg with the front tires. Mr. Garcia felt excruciating pain and fell to the ground, nearly losing consciousness. In spite of Mr. Garcia’s state, the agent flipped Mr. Garcia over and stood over him, forcefully pulling Mr. Garcia’s hands behind his back to handcuff him, and causing him even greater pain. Eventually, the agents carried Mr. Garcia onto one of their ATVs and drove for two hours through rough desert terrain to an ambulance, each bump of the ride causing him even more pain.

After the ambulance transported Mr. Garcia to a nearby hospital, he was x-rayed and diagnosed with acute right knee dislocation and closed right tibial plateau fracture, with a likely ligament injury or rupture that required MRI imaging which the hospital could not perform. He was released with a knee immobilizer, crutches, and instructions that he needed an MRI and evaluation by an orthopedic surgeon as soon as possible.

However, Mr. Garcia was instead taken to a U.S. Customs and Border Protection (CBP) holding facility, or hielera, where he was placed in a cramped, frigid cell with only the floor or hard benches for sleeping. He was denied a request to contact his family and denied prompt and comprehensive medical treatment. The next morning, CBP officers placed Mr. Garcia on a bus with other migrants and attempted to deport him. When the Mexican authorities saw that Mr. Garcia was a citizen of Guatemala, they refused to accept him for deportation due to his injuries.

CBP transported Mr. Garcia back to a holding facility, then later that night, drove him and another small group of migrants into Mexico and left them in the Sonoran desert, without alerting Mexican authorities of their presence. Later, Mexican authorities recognized Mr. Garcia and reiterated that CBP should not have deported him to Mexico, and that they could not return him to Guatemala due to his injuries. Instead, they took him to a migrant shelter in Mexico, where he remained for 7 months until he was paroled back into the United States for medical treatment, with the help of Kino Border Initiative and the American Civil Liberties Union of Arizona. He later underwent orthopedic surgery for reconstruction of his knee, and continued to use assistive devices for mobility for almost a year and a half after his injury.

Mr. Garcia Pleytes filed an administrative claim against CBP under the Federal Tort Claims Act (FTCA) on February 14, 2024. CBP subsequently issued a notice denying Mr. Garcia’s claim, and he filed suit in the Western District of Washington on September 12, 2024. On March 14, 2025, the case was dismissed as the parties reached a settlement.

Documents:

Counsel: Northwest Immigrant Rights Project

Contact: Matt Adams | Northwest Immigrant Rights Project | 206.957.8611 | matt@nwirp.org

Annette Mattia v. USA

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Annette Mattia, et al. v. United States of America, et al., No. 4:24-cv-00252 (D. Ariz., filed May 16, 2024)

The family of indigenous Arizona man Raymond Mattia filed suit against U.S. Customs and Border Protection (CBP) after he was shot and killed by U.S. Border Patrol agents outside his home on tribal land. Tohono O’odham Nation Police Department requested assistance from Border Patrol after receiving a report of two gunshots heard on Tohono O’odham Nation land on the evening of May 18, 2023. Border Patrol agents agreed to respond and arrived on the reservation lands within 30 minutes in a convoy of approximately seven vehicles, with body armor and assault rifles.

Upon arriving at the location of the reported gunshots, agents did not see or hear additional activity, but nonetheless began searching a wide area to attempt to encounter persons of interest. After several minutes exploring the neighborhood and surrounding yards and wilderness, agents approached Mr. Mattia’s home. Agents had no specific suspicion of Mr. Mattia, or of any particular person in the neighborhood.

According to body camera footage, one agent drew a handgun and aimed it at Mr. Mattia’s home before announcing himself or the other agents present. Mr. Mattia emerged from his home and complied with agents’ requests to toss aside his hunting knife. Agents did not identify themselves or explain why they were present. They began yelling conflicting commands at Mr. Mattia, who remained calm and compliant. Several other agents drew firearms and aimed them at Mr. Mattia. When told to remove his hand from his pocket, Mr. Mattia did so, holding nothing but a cell phone. At least three agents opened fire, and Mr. Mattia was pronounced dead on the scene.

The family of Mr. Mattia filed suit against CBP under the Federal Tort Claims Act (FTCA) for use of excessive force, deprivation of right to familial association, assault, battery, negligence, and wrongful death, as well as for intentional infliction of emotional distress on surviving family members. Defendant United States filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim, which plaintiffs have opposed.

Documents:

Contact:

Ryan Stitt ǀ Stitt Vu Trial Lawyers APC ǀ rstitt@stittvu.com

Marcus Bourassa ǀ Mckenzie Scott PC ǀ mbourassa@mckenziescott.com

Press:

Borowski v. U.S. Customs and Border Protection

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Borowski v. U.S. Customs and Border Protection, No. 1:23-cv-00257 (W.D.N.Y., filed Mar. 22, 2023)

Matthew Borowski is an immigration attorney and U.S. citizen who resides in Canada but manages an immigration law firm in Buffalo, New York. As such, he routinely commutes across the U.S./Canadian border for work. He has maintained a NEXUS card since 2012. NEXUS is a trusted traveler program that permits faster travel across the border.

Mr. Borowski and his family have had several encounters with Customs and Border Protection (CBP) officers while traveling across the border. In one incident, a CBP officer assaulted Mr. Borowski’s wife and took the families’ NEXUS cards. CBP ultimately returned the NEXUS cards. Mr. Borowski and his wife sued the assaulting CBP officer, who continued to harass the family while the lawsuit was pending. In 2017, Mr. Borowski successfully renewed his NEXUS card.

During the Trump administration, Mr. Borowski was outspoken about his opposition to new immigration policies and engaged in a range of activity to express his views, including a protest in immigration court. Mr. Borowksi continued to travel back and forth across the U.S./Canadian border, and though he was routinely sent to secondary inspection for no apparent reason, he was always permitted to continue his travel. In December 2022, CBP declined his request to renew his NEXUS card without explanation. A NEXUS Supervisor indicated to Mr. Borowski that prior incidents had led to the denial.

Mr. Borowski submitted a request under the Freedom of Information Act (FOIA) seeking the reason for the denial. CBP has yet to respond. On March 22, 2023, Mr. Borowski filed suit alleging that the denial of his request to renew his NEXUS card was arbitrary and capricious under the Administrative Procedure Act (APA) and challenging the failure to respond to his FOIA request. Defendant CBP filed a motion to dismiss, and Mr. Borowski filed an amended complaint on June 20, 2023. Defendant CBP filed a motion to dismiss the amended complaint on July 21, 2023, and plaintiff filed his response August 21, 2023.  Defendant submitted a motion for partial summary judgment on October 16, 2023, arguing that the court should dismiss Plaintiff’s claim that CBP improperly withheld responsive documents because information was properly withheld under the FOIA statute.

The court granted the motion to dismiss in part on February 21, 2024, dismissing Mr. Borowski’s FTCA and constitutional claims without prejudice but denying the motion to dismiss as to his APA claim. Defendant filed an answer to the amended complaint on March 5, 2024. On May 10, 2024, the court denied Defendant’s motion for partial summary judgment, concluding that CBP had not adequately addressed the deficiencies Plaintiff identified in its production, nor adequately justifying the information it had withheld pursuant to FOIA exemptions. On July 9, 2024, Defendant CBP filed a renewed motion for partial summary judgment, claiming that it had run a new search for documents and all withheld documents were properly done so pursuant to FOIA’s exemptions. Briefing is ongoing.

Documents:

Counsel: Matthew Borowski

Contact: Matthew Borowski | (716) 330-1503

Press:

Daniel Telvock, NEXUS pass dispute pits attorney vs. U.S. Customs, WIVB4, Aug. 3, 2023.

ACLU New Mexico and ACLU Texas Issue Letter Urging Independent Investigations and Transparency of CBP’s Vehicle Pursuit Policy and Border Patrol’s Deadly Pursuit of a Vehicle in New Mexico

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On August 25, 2021, the ACLU of New Mexico and the ACLU of Texas filed a letter with the CBP Acting Commissioner urging CBP to ensure independent investigations of an August 3, 2021 deadly vehicle pursuit by Border Patrol. Border Patrol’s vehicle pursuit resulted in two deaths and the hospitalization of eight other individuals. The letter also requested the public release of CBP’s current written vehicle pursuit policy, all training materials, and any other policy related to the August incident. Finally, the letter recommended that the Department of Homeland Security’s Office of Inspector General review CBP’s written policy and its implementation.

On January 11, 2023, CBP released an updated Emergency Driving and Vehicular Pursuits Directive that aligned CBP’s policy with those best practices of other law enforcement agencies in the United States. The updated policy will take effect May 2023.

Related Links:

Clark v. Wolf

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Clark v. Wolf, No. 3:20-cv-1436 (D. Or., filed Aug. 24, 2020)

In July 2020, Customs and Border Protection (CBP) officers—in concert with other federal and local law enforcement officers—used violent crowd control devices on nonviolent protestors during ongoing Black Lives Matter protests in Portland, Oregon. This included the use of tear gas, pepper-spray balls, rubber bullets, and flashbangs, which disoriented and injured many protestors.

Four individuals who had participated in the protests brought a putative class action against federal law enforcement officers, seeking damages under Bivens for the physical and mental harms they had suffered from the defendants’ actions. Additionally, the plaintiffs sought a declaratory judgment that the use of tear gas on peaceful protestors violates the First Amendment.

On February 3, 2022, the district court dismissed the plaintiffs’ damages claims on the basis that special factors counseled against the extending of Bivens to the context of plaintiffs’ claims. A rule 54(b) judgment issued, which plaintiffs appealed to the Ninth Circuit.

On June 27, 2022, plaintiffs voluntarily dismissed the case and the pending appeal.

Documents:

Counsel: Pickett Dummigan McCall LLP | Elliot & Park PC | Sugerman Law Office | Harmon Johnson LLC | Chase Law PC | People’s Law Project | Piucci Law | Michelle R. Burrows PC

Johnson v. United States of America

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Carey Johnson v. United States of America, No. 18-cv-2178 (S.D. Cal., filed Sept. 20, 2018)

Carey Johnson is a U.S. citizen and military veteran who resides in Mexico. Johnson has a disability and carries a Department of Veterans’ Affairs (VA) identification card with a disability designation. He frequently crosses the U.S.-Mexico border near San Diego to receive treatment at VA facilities.  On September 22, 2016, Johnson approached Customs and Border Protection (CBP) officers at the Otay Mesa SENTRI gate and requested that he be allowed to use the SENTRI gate for expedited crossing as an accommodation for his disability. CBP denied his request, and officers told him he would need to request accommodations each time he crossed the border. After this encounter, the CBP officer wrote up a report that led to Johnson being repeatedly stopped and harassed on several future crossings.

During Johnson’s following border crossings, he attempted to request accommodations to expedite his border crossing. CBP officers repeatedly abused him. On one occasion, CBP officers impounded his car and shackled him to a bench for 3 hours. On another, officers dragged him from his car and tasered him. CBP agents seized his car on at least two occasions, allegedly based on SENTRI lane violations. CBP officers refused to return the car unless Johnson paid a $10,000 fine, which he was unable to afford.

Johnson eventually sued to seek redress for the repeated abuses he suffered. He sought damages under Bivens, Section 504 of the Rehabilitation Act,the Federal Tort Claims Act, and California’s Bane Act. On July 14, 2020, the district court dismissed Johnson’s Bivens claims against the individual CBP officers. On January 25, 2021, the court granted Defendant United States’ motion for summary judgment on the Rehabilitation Act and Bane Act claims.

The case settled and was dismissed pursuant to a joint motion on March 26, 2021.

Documents:

Counsel: Robbins & Curtin, P.L.L.C.
Contact: Joel Robbins | joel@robbinsandcurtin.com

Reyes v. United States, DOE CBP Officers 1-30

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Reyes v. United States, DOE CBP Officers 1-30, No. 3:20-cv-01752 (S.D. Cal., filed Sept. 8, 2020)

On August 2, 2018, Marco Reyes was waiting in his car to cross into the United States at the Otay Mesa Port of Entry in California. Due to an incident in another vehicle lane, a Customs and Border Protection (CBP) officer knocked at Reyes’ car window and asked him to step out of the car. Reyes, who suffered from significant hearing loss from military service, did not immediately hear the officer or comply with his commands. When Reyes realized the officer was speaking to him, he immediately got out of the car and stood behind his vehicle. The CBP officer then began to yell profanities at Reyes and bumped him with his chest, accusing him of not immediately following directions. When Reyes raised his hand to keep the officer from bumping into him, the officer accused him of assault and called for back-up assistance. A larger group of CBP officers arrived, pushed Reyes to the ground, and proceeded to beat him up while he was on the ground, injuring his shoulder and arm and breaking several ribs. After beating Reyes up, the officers arrested him for assault on a federal officer. The U.S. Attorney’s office declined to pursue prosecution of Reyes.

On September 8, 2020, Reyes filed this action, alleging violations of his rights under California’s Bane Act, the federal Rehabilitation Act, and the Federal Tort Claims Act. On February 16, 2021, the district court dismissed Reyes’ Bane Act claims and Rehabilitation Act claims without prejudice and with leave to file an amended complaint. The court also dismissed on consent the FTCA claims against the individual CBP officers.

Reyes proceeded to file two amended complaints. The case settled and was dismissed pursuant to a joint motion to dismiss on January 11, 2022.

Documents:

Counsel: McKenzie Scott, P.C.
Contact: Timothy Scott | tscott@mckenziescott.com

Bouey v. United States of America

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Bouey v. United States of America et al., No. 3:22-cv-00442 (S.D. Cal., filed April 4, 2022)

On July 16, 2020, Janine Bouey, a U.S. citizen, visited Tijuana, Mexico for the day for a dental appointment. When she attempted to return to the United States via the pedestrian lanes at the Otay Mesa Port of Entry (OMPOE), a CBP officer pulled her out of line. The CBP officer approached her, flirted with her, and ask her questions about both her trip to Mexico and her personal life. When Ms. Bouey refused to answer the questions about her personal life, the CBP officer retaliated by taking Ms. Bouey to the main building at the OMPOE.

Inside the OMPOE building, CBP performed multiple harmful and invasive searches of Ms. Bouey. On multiple occasions an officer fondled and penetrated Ms. Bouey’s genitalia without her consent and without justification. She was handcuffed to a bench, asked to strip down naked, and then ordered to bend over as an officer shined a flashlight into the areas of her genitalia. CBP officers also used a canine agent to invasively smell several of Ms. Bouey’s orifices. CBP officers never explained the reason for these searches, denied Ms. Bouey’s repeated requests to call an attorney, and failed to acknowledge her U.S. citizenship. The mistreatment by CBP caused Ms. Bouey physical pain and emotional distress, including anxiety, shock, humiliation, apprehension, and anguish. In response, on April 4, 2022, Ms. Bouey filed suit seeking damages under the Federal Tort Claims Act (FTCA) and Bivens. The FTCA claims included: (1) negligence, (2) intentional infliction of emotional distress, (3) battery, and (4) violation of the Bane Act. The Bivens claim sought a remedy for violation of her Fourth Amendment rights. On June 3, 2022, counsel for the U.S. government filed a motion to dismiss, which was denied on July 14, 2022, though the court did grant the government’s request to strike the demand for attorneys’ fees. Defendant United States then filed an answer to the complaint on July 28, 2022. The parties are scheduled for a settlement conference on May 24, 2023.

After the U.S. Supreme Court’s 2022 decision in Egbert v. Boule, which largely shields federal border agents—including CBP officers and Border Patrol agents—from civil lawsuits seeking damages for excessive-force claims, the parties began exploring the possibility of settlement. The court signed off on the settlement in June and dismissed the case on August 11, 2023.

After the U.S. Supreme Court’s 2022 decision in Egbert v. Boule, which largely shields federal border agents—including CBP officers and Border Patrol agents—from Bivens liability for excessive-force claims, the parties began exploring the possibility of settlement. The court signed off on the settlement in June and dismissed the case on August 11, 2023.

Counsel: Joseph M. McMullen | joe@imm-legal.com
Contact: Kendall Martin | kendall@alliancesd.org | (619) 629-0337

Press:
● Abuse, Assault and Impunity at DHS Must Stop: Former LAPD Officer Subjected to Sexual Assault by DHS Sues the Agency, Alliance San Diego, Jun. 16, 2021.

● Alex Riggins, Former LAPD Officer Settles Suit Against CBP, San Diego Tribune, Aug. 11, 2023.

Estrada v. United States

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Estrada, et al. v. United States, et al., No. 3:22-cv-00373-AJB-BGS (S.D. Cal., filed Mar. 21, 2022)

On May 14, 2021, in Campo, California, a Border Patrol agent attempted to stop a vehicle suspected of being involved in migrant smuggling. The driver of the vehicle, Silvestre Estrada Vargas, who was accompanied by two other individuals, failed to yield before eventually stopping in a gas station parking lot. Without any legal justification or threat to their safety, an unknown number of Border Patrol agents then began shooting at the vehicle. Mr. Estrada, who was unarmed and had one hand on the steering wheel and another holding a cell phone up to his ear, was struck by an unknown number of bullets. He was transported to a local hospital where he was pronounced dead shortly after arrival. Luckily, the other two occupants of the vehicle, despite being directly in the line of fire, were uninjured.

The San Diego County Sheriff’s Department Homicide Division, the Federal Bureau of Investigation, the San Diego County Medical Examiner’s Office, the Department of Homeland Security Office of Inspector General, and CBP’s Office of Professional Responsibility had all responded to the scene and began an investigation. However, when Plaintiffs’ investigator spoke to the gas station manager, the manager said that one of the responding agencies had already seized a videotape from the gas station surveillance system and had been advised not to speak to anyone about the incident.

Mr. Estrada’s minor son and mother, as well as the two other vehicle occupants, Francisco Madariaga and Jaime Madariaga-Gonzalez, filed this suit on March 21, 2022, pursuant to the Federal Tort Claims Act (FTCA) and Bivens v. Six Unknown Named Agents, alleging wrongful death, excessive use of force, assault and battery, and negligence. On June 27, 2022, Plaintiffs filed an amended complaint, which Defendant United States answered on July 13, 2022. The parties then engaged in discovery.

On September 1, 2023, Defendants filed a motion for summary judgment. Plaintiffs filed a response in opposition and a cross-summary judgment motion on September 29, 2023. Briefing concluded on November 3, 2023, and parties await the court’s decision. On July 30, 2024, the court granted in part and denied in part Defendant’s motion for summary judgment and denied Plaintiffs’ motion for summary judgment, dismissing only the battery and Bane Act claims. Though a settlement conference was scheduled, the parties moved to vacate the conference, stating that there is no possibility of settlement in this case. The final pretrial conference is scheduled for March 6, 2025.

Counsel: Keith Rutman Law

Contact:
Keith Rutman | krutmanlaw.com

Press:
● Kristina Davis, Border Patrol Sued Over San Diego Man’s Shooting Death in Campo, The San Diego Tribune, Mar. 22, 2022.

Haitian Bridge Alliance, et al. v. Biden

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Haitian Bridge Alliance, et al. v. Biden, et al., No. 1:21-cv-03317 (D.D.C., filed Dec. 20, 2021)

Mirard Joseph is a Haitian man who was whipped by a U.S. Border Patrol agent while attempting to bring food to his family in a Texas migrant encampment. Mr. Joseph alleges his wife received only bread and water and a single diaper for their infant daughter each day—conditions that eventually drove him and others to leave the Del Rio encampment and return to Mexico to buy food. When they attempted to reenter the camp with their purchases, they were met by Border Patrol officers who grabbed Mr. Joseph’s shirt, “lashed at him with reins, attempted to drag him back into the water, and nearly trampled him.”

Mr. Joseph and ten other Haitian nationals held in the temporary Border Patrol camp allege that this mistreatment was part of a discriminatory policy by the Biden administration to target Haitians. Plaintiffs allege that the U.S. government differentially applied the Title 42 process—a summary expulsion process purportedly designed to protect public health during the COVID-19 pandemic. Specifically, plaintiffs allege that the government used Title 42 at the Del Rio Port of Entry against Haitian and Haitian-appearing asylum seekers with the purpose of discouraging them from accessing their right to seek asylum. Plaintiffs assert that this Haitian Deterrence Policy diverges from standard practice for asylum seekers and is driven by discriminatory purpose. Despite ample warning that thousands of Haitian migrants were heading toward Del Rio, federal authorities refused to prepare adequate infrastructure to receive them when arrivals started ramping up in September. As a result, a makeshift processing center under the Del Rio International Bridge turned into an encampment, where up to 15,000 people were made to wait for days at a time in temperatures topping 100 degrees without adequate food, water, bedding, or medical attention.

Footage described in the complaint prompted a national outcry in September 2021, with White House press secretary Jen Psaki calling the tape “horrific” during her September 20 press briefing. DHS Secretary Alejandro Mayorkas launched an internal investigation into the encounter. While the Secretary initially called for findings to be released by the end of September, results are still pending.

Plaintiffs allege that the Haitian Deterrence Policy did not end with mistreatment in Del Rio. After being processed for admission, the U.S. government placed those Haitian asylum seekers in detention, split up families, and shackled and removed them to Haiti without providing the opportunity to request humanitarian protection in the United States. Plaintiff Wilson Doe testified that DHS officers lied and said his family was being transferred to another detention facility when they were actually being expelled pursuant to Title 42. Officers then beat him when he resisted boarding the plane.

Plaintiffs allege violations of the Fifth Amendment due process clause and the Administrative Procedure Act. They also seek certification for a class of all Haitian or presumed Haitian individuals who were denied access to the U.S. asylum process in or around the Del Rio encampment between September 9 and 24, 2021. Plaintiffs seek declaratory and injunctive relief enjoining the government from subjecting members of the proposed class to the Haitian Deterrence Policy or Title 42 expulsions. They also seek return of those already expelled under Title 42 to allow them to pursue their asylum claims. Plaintiffs filed their complaint on December 20, 2021. Defendants filed a motion to dismiss on June 10, 2022. On June 14, 2022, the court found that the case was not related to Huisha-Huisha and P.J.E.S. v. Wolf and J.B.B.C. v. Wolf. Thus, it transferred the case for random reassignment.

On May 12, 2013, the court noted that it understood the Haitian Deterrence Policy to have expired on May 11, 2023, alongside the formal end of the Title 42 Policy, and so ordered plaintiffs to show cause as to why the case was not moot. On June 16, 2023, plaintiffs filed a show cause motion and a supplemental complaint, both of which defendants opposed.  On February 22, 2024, the court issued an oral order at a status conference denying the motion to dismiss and granting plaintiffs’ leave to file an amended complaint. Plaintiffs filed their amended complaint on March 18, 2024, adding new plaintiffs and seeking declaratory and injunctive relief to remedy ongoing injuries and to prevent defendants from engaging in similar violations of civil rights in the future. Defendants filed a motion to dismiss the amended complaint on May 17, 2024. After briefing concluded, the court held oral argument on August 29, 2024. The parties jointly requested the opportunity to submit supplemental briefing regarding their respective views on 8 U.S.C. 1231(b)(3) and 8 U.S.C. 1231 (United States Policy With Respect to Involuntary Return of Persons in Danger of Subjection to Torture) and how those provisions affect claims made in plaintiffs’ amended complaint.

Documents:

Counsel: Innovation Law Lab | Haitian Bridge Alliance | Justice Action Center

Contacts:
Taisha Santil | tsaintil@haitianbridge.org
Tasha Moro | tasha.moro@justiceactioncenter.org
Alex Mensing | alexm@innovationlawlab.org

Press:
● Jennifer Doherty, Class Action Ties Alleged Whipping To Haitian Discrimination, Law 360, Dec. 21, 2021.
● Eileen Sullivan, Haitian Migrants File Lawsuit Protesting Treatment by Border Patrol, The New York Times, Dec. 20, 2021.