Category Archives: Assaults and Use of Excessive Force

Al Otro Lado v. Wolf

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Al Otro Lado et al. v. McAleenan et al., No. 3:17-cv-02366 (S.D. Cal., filed July 12, 2017), No. 22-55988 (9th Cir., filed Sept. 21, 2022), and No. 22-56036 (9th Cir., filed Nov. 4, 2022)

On July 12, 2017, the American Immigration Council, along with the Center for Constitutional Rights and Latham & Watkins, LLP, filed a class action lawsuit challenging U.S. Customs and Border Protection (CBP)’s unlawful practice of turning away asylum seekers who present themselves at ports of entry along the U.S.-Mexico border.

The plaintiffs in the case are Al Otro Lado (a non-profit legal services organization that serves indigent deportees, migrants, and refugees in Los Angeles and Tijuana) and six courageous asylum seekers who experienced CBP’s unlawful conduct firsthand. Their experiences demonstrate that CBP uses a variety of tactics—including misrepresentation, threats and intimidation, verbal and physical abuse, and coercion—to deny bona fide asylum seekers the opportunity to pursue their claims. The complaint alleges that CBP’s conduct violates the Immigration and Nationality Act, the Administrative Procedure Act, the Due Process Clause of the Fifth Amendment, and the doctrine of non-refoulement under international law.

On November 13, 2017, Plaintiffs filed a motion for class certification, which included dozens of declarations from asylum seekers CBP had turned away at the border. On November 28, 2017, the Court granted Defendants’ motion to transfer venue to the Southern District of California and dismissed all pending motions without prejudice. On August 20, 2018, the court denied in part and granted in part the government’s motion to dismiss, allowing the majority of plaintiffs’ claims to go forward. On October 12, 2018, plaintiffs filed an amended complaint highlighting the Trump administration’s specific implementation of the “turnback policy” as well as the administration’s own “zero-tolerance policy.”

Defendants filed a motion to dismiss the amended complaint on November 29, 2018, which Plaintiffs opposed. Close to two dozen states filed an amicus brief in support of Plaintiffs’ opposition to the motion to dismiss, as did many members of Congress, Amnesty International, law professors, and nineteen nonprofit immigrant advocacy organizations.

In July 2019, the judge rejected most of Defendants’ claims in the motion to dismiss and ordered the government to file an answer to Plaintiffs’ second amended complaint, which it did in August 2019. In February, the parties completed briefing on certification of a class consisting of all noncitizens who seek or will seek to access the U.S. asylum process by presenting themselves at a POE on the U.S.-Mexico border, and were or will be denied access to the U.S. asylum process by or at the instruction of CBP officials on or after January 1, 2016, as well as sub-class of those who were or will be denied access to the U.S. asylum process as a result of metering over the same time period.

Motion for Preliminary Injunction

While this case has been pending, and asylum seekers remain stranded in Mexico under the Turnback Policy, the Trump administration issued an interim final rule (the “Asylum Ban”) barring individuals from asylum eligibility in the United States if they transited through a third country and did not seek protection there first. On September 26, 2019, Plaintiffs filed a motion for preliminary injunction and a motion seeking provisional class certification asking the district court to keep Defendants from applying the Asylum Ban to provisional class members, in order to maintain their eligibility for asylum until the court rules on the legality of the Trump administration’s metering policy in this case.

On November 19, 2019, the court provisionally certified a class consisting of “all non-Mexican asylum seekers who were unable to make a direct asylum claim at a U.S. [port of entry] before July 16, 2019 because of the U.S. Government’s metering policy, and who continue to seek access to the U.S. asylum process.” The court also blocked Defendants from applying the Asylum Ban to members of the provisional class and ordered that Defendants apply pre-Asylum Ban practices for processing the asylum applications of members of the class.

On December 4, 2019, Defendants appealed the district court’s order to the Ninth Circuit Court of Appeals. On March 5, 2020, the Ninth Circuit denied Defendants’ motion for a stay of the order until the appellate court decides the merits of the appeal. In doing so, the Ninth Circuit lifted its previously imposed emergency temporary stay of the order. At this time, the district court’s order is in effect.

On July 17, 2020, Plaintiffs filed a motion to clarify the preliminary injunction, asserting that since the Ninth Circuit lifted the temporary stay, Defendants had committed “numerous violations of the preliminary injunction,” including “tak[ing] minimal and insufficient steps to identify class members and to ensure that the Asylum Ban does not impact their eligibility for asylum” and refusing to produce the written guidance sent to the various government agencies involved in implementing the preliminary injunction. Defendants responded in opposition to the motion on August 3, 2020 and Plaintiffs replied on August 10, 2020.

Class Certification

Oral argument was held on the motion for class certification on July 30, 2020. On August 6, 2020, the district court granted Plaintiffs’ motion for class certification, certifying a class consisting of “all noncitizens who seek or will seek to access the U.S. asylum process by presenting themselves at a Class A [POE] on the U.S.- Mexico border, and were or will be denied access to the U.S. asylum process by or at the instruction of [CBP] officials on or after January 1, 2016.” The court also certified a subclass of “all noncitizens who were or will be denied access to the U.S. asylum process at a Class A POE on the U.S.-Mexico border as a result of Defendants’ metering policy on or after January 1, 2016.”

Discovery began and on September 4, 2020 Plaintiffs filed a motion for summary judgment. On September 25, 2020, Defendants filed a cross motion for summary judgment and opposition to Plaintiffs’ motion.

Class counsel have prepared a Frequently Asked Questions (FAQ) resource to address common questions about the court’s order, class membership, and implementation.  The FAQ resource will be updated periodically and is available here.

Motion for Summary Judgment

The parties filed cross-motions for summary judgment in September 2020. On September 2, 2021, the court granted Plaintiff’s motion for summary judgment in part, specifically to Plaintiff’s claim for violations of APA § 706(1) and Fifth Amendment Due Process Clause. Defendant’s motion for summary judgment was granted as to claims based on the ultra vires violations of the right to seek asylum and violation of the Alien Tort Statute. The court deferred a decision on remedy and asked the parties to submit briefing on remedies in light of the APA § 706(1) finding and considering how Title 42 would affect the implementation of a remedy. The parties submitted supplemental briefs on October 1, 2021. On April 1, 2022, the parties filed a joint status report addressing current issues regarding court oversight and remedies.

On August 5, 2022, the court issued two decisions. First, the judge converted the preliminary injunction to a permanent injunction and granted in part, but denied in part, Plaintiffs’ motion to clarify the preliminary injunction order. Second, she issued a decision with respect to remedies on summary judgment. The court concluded that it could not enter any injunctive relief, relying on the Supreme Court’s decisions in Garland v. Aleman Gonzalez, 142 S. Ct. 2057 (2022). Instead, the court entered declaratory judgment, declaring that “absent any independent, express, and lawful statutory authority, Defendants’ refusal to deny inspection or asylum processing to noncitizens who have not been admitted or paroled and who are in the process of arriving in the United States at Class A Ports of Entry is unlawful regardless of the purported justification for doing so.”

The parties have cross-appealed the final judgment to the Ninth Circuit. On December 20, 2022, the Government filed its opening brief. Plaintiffs filed the second brief on cross-appeal on February 21, 2023, and the appeal was fully briefed as of May 22, 2023. The same amici that submitted amicus briefs in the district court also filed briefs on appeal. The Ninth Circuit held oral argument on November 28, 2023 and subsequently asked for supplemental briefing on questions related to what constitutes unreasonable delay versus unlawful withholding under the APA, which both parties submitted on January 17, 2024.

On October 23, 2024, the Ninth Circuit issued an opinion, holding that metering and requiring individuals to remain in Mexico while waiting to seek asylum is unlawful under APA 706.

Documents:

Counsel: Mayer Brown LLP | American Immigration Council | Center for Constitutional Rights | Southern Poverty Law Center | Center for Gender and Refugee Studies| Vinson & Elkins LLP

Contact: Melissa Crow | Center for Gender and Refugee Studies | crowmelissa@uchastings.edu

Press:

FTCA Administrative Complaint Against Border Patrol Re: Two Sisters Sexually Assaulted by CBP Officer in Texas

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FTCA Administrative Complaint Against Border Patrol Re: Two Sisters Sexually Assaulted by CBP Officer in Texas

In July 2016, two sisters — then 19 and 17 years old — lost their way while traveling to the United States from Guatemala, and encountered CBP officers after crossing the Texas-Chihuahua, Mexico, border. They asked for help and were taken to a CBP field office in Presidio, Texas. Once there, the sisters were led by a federal officer into a closet-like room one at a time, told to remove all their clothes, and sexually assaulted. The victims report that they continue to suffer severe emotional distress as a result of the assault.

The sisters reported the abuse shortly after it occurred to another CBP officer in the field office where they were held, and an investigation was launched by the Department of Homeland Security’s Office of Inspector General. The sisters were interviewed twice and asked to draw a depiction of the closet. Federal authorities have not pursued criminal charges against the officer, nor is it clear whether the officer has faced any disciplinary actions for his assaults on the sisters.

On March 22, 2017, the ACLU of Northern California filed two administrative claims under the Federal Tort Claims Act with the federal government on behalf of each of the sisters.

Media:

Counsel:  ACLU of Northern California

Contact: Angélica Salceda | asalceda@aclunc.org | (415) 621-2493

Alton Jones v. United States of America, et al.

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Alton Jones v. United States of America, et al., No. 3:16-cv-01986-W-WVG (S.D. Cal., filed Aug. 8, 2016)

In August 2014, Alton Jones, a U.S. citizen who served as a Navy SEAL from 1977 to 1990, was assaulted by Border Patrol agents while out for a run at the Border Field State Park / Tijuana Estuary. He was tackled to the ground and then detained, first at the State Park and then at the Imperial Beach Border Patrol Station, where he was held without charge or explanation overnight. All told, he spent seventeen hours in Border Patrol custody before being released. He was never charged with any offense.

On August 8, 2016, the ACLU of San Diego and Imperial Counties’ Border Litigation Project filed a federal complaint in the Southern District of California on Mr. Jones’s behalf, alleging violations of Mr. Jones’ Fourth Amendment rights. Additionally, under the Federal Tort Claims Act, Mr. Jones submitted an administrative complaint to the Department of Homeland Security and U.S. Customs and Border Protection, claiming $3 million in damages for false imprisonment, battery by a peace officer, assault, negligence, intentional infliction of emotional distress, and violation of the California Bane Act.

On October 20, 2017, CBP denied Mr. Jones’s administrative tort claim. On February 3, 2017, because his administrative claim was denied, the Border Litigation Project filed an amended complaint to add Mr. Jones’s tort claims. On April 7, 2017, Defendants filed an answer to Mr. Jones’s amended complaint. On April 10, 2017, Defendants filed a counterclaim against Mr. Jones, alleging assault.

Discovery commenced in May 2017 and concluded in April 2018. On January 12, 2018, Plaintiff and Counter-Defendant filed a motion for summary judgment on the government’s counterclaim, which the government opposed. On May 2, 2018, Defendants filed a combined motion for summary judgment as to all claims brought against them and on their counterclaim against Plaintiff. On May 16, 2018, Defendants, DHS and CBP, filed another motion for summary judgment, this time seeking to dismiss the FOIA claim. Plaintiff opposed both motions. On November 15, 2019, the court dismissed in part and granted in part both motions for summary judgment.

The court dismissed the constitutional claims against the CBP officers, finding that the CBP agents had probable cause to arrest Mr. Jones due to his presence in a restricted area and his failure to heed repeated warnings to leave. The court allowed several of the FTCA claims to proceed. Notably, Jones’ claim for battery survived summary judgment due to Jones’ testimony that officers hit him, supported by documented evidence of injuries. His claim for intentional infliction of emotional distress, based on his allegation that the agents locked him in a patrol car with the heat turned on and the windows rolled up (in August desert sun), also was allowed to proceed. The defendants won summary judgment on their counterclaim against Jones for negligence in causing injury to one of the officers.

The parties settled in March 2019, agreeing to drop the claims against each other without either party paying compensation.

FTCA Administrative Complaints Challenging Abuses from CBP Roving Patrols

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FTCA Administrative Complaints Challenging Abuses from CBP Roving Patrols

When conducting enforcement operations within the United States, CBP regularly sends its officers on “roving patrols.” These patrols, conducted many miles away from the U.S. Border, often lead to the detention and interrogation of U.S. citizens without reasonable suspicion of any crime. Many of the U.S. citizens detained by CBP were targeted because of their ethnicity, and CBP officers have subjected citizens to verbal and physical abuse while checking their citizenship status. Collected here are examples of complaints that the ACLU has filed against CBP to address the continued violation of U.S. citizens’ rights at the hands of CBP.

2013 Office of the Inspector General Complaint

On October 9, 2013, the ACLU of Arizona and the ACLU Border Litigation Project  submitted an administrative complaint to the DHS Office of Inspector General (OIG) and DHS Office of Civil Rights and Civil Liberties (CRCL) concerning unlawful conduct of Border Patrol agents during roving patrols in Southern Arizona.  The complaint was submitted on behalf of 5 U.S. citizens who detail very serious incidents of verbal or physical abuse when their vehicles were stopped without reasonable suspicion by Border Patrol agents.  In at least two of the incidents, young children were traveling in the vehicles.

The complaint calls for the investigation of these incidents; a comprehensive review of complaints involving CBP roving patrols to determine whether Border Patrol agents are complying with their obligations under agency guidelines, the U.S. Constitution, and international law; and recommendations from OIG and CRCL regarding significant changes in CBP training, oversight, and accountability mechanisms necessary to address the problems and prevent further abuses.

2014 Office of the Inspector General Complaint

On January 15, 2014, the ACLU of Arizona and the ACLU Border Litigation Project submitted an administrative complaint to DHS Office of Inspector General and DHS Office of Civil Rights and Civil Liberties concerning abuses committed by Border Patrol agents at interior vehicle checkpoints in southern Arizona.  The complaint was submitted on behalf of 15 U.S. citizens, aged 6-69 years old, and detailed 12 incidents in which their rights were violated when they were stopped at 6 checkpoints over a period of a year and a half.

The complaint calls for the investigation of all of the incidents identified; a comprehensive review of all complaints regarding Border Patrol checkpoints over the past five years; a thorough review of Border Patrol checkpoint policies and practices to ensure that operations are in fact limited to briefly verifying citizenship and that agents are receiving guidance regarding the limits of their authority; and a review of all policies and procedures related to service canines, in light of widespread reports of “false alerts” by the dogs.

2015 Federal Tort Claims Act Administrative Complaint

On May 19, 2015, the ACLU of Arizona filed two claims with the federal government under the Federal Tort Claims Act (“FTCA”) on behalf of an Arizona woman seeking monetary damages for egregious and repeated rights violations by U.S. Border Patrol agents.

The first claim arises out of an incident on May 21, 2013, in which Border Patrol agents stopped Clarisa Christiansen and her two young children without cause while the family was driving home from school.  After Ms. Christiansen demanded an explanation, the agents threatened to deploy a Taser and then threatened to cut her out of her seatbelt with a knife.  The agents subsequently slashed a rear tire and left Ms. Christiansen and her children stranded on a hot desert road with a flat tire and no explanation.

In October 2013, the ACLU submitted a complaint to DHS oversight agencies on behalf of Ms. Christiansen and four others who were subjected to unlawful “roving patrol” stops by Border Patrol.  More than a year and a half later, those agencies have yet to respond.

The second claim was filed in response to years of unauthorized and unlawful entries by Border Patrol agents onto the family’s private property west of Tucson.  On a weekly basis, Border Patrol helicopters buzz the family’s home at extremely low altitudes, causing dwellings to shake, and often disrupting the family’s sleep with deafening noise and bright lights.  Agents have also repeatedly entered the Christiansens’ property on foot and on motorized vehicles, despite numerous posted “No Trespassing” signs.

Federal law currently grants Border Patrol authority to enter onto private property within twenty-five miles of the border “to prevent illegal entry.”  Agents are further empowered to conduct interior enforcement within 100 miles of any national boundary, an area that encompasses most of the U.S. population.  As in Ms. Christiansen’s case, agents routinely ignore the legal limits of their authority in the course of these operations.

Counsel: ACLU of Arizona

Maria Fernanda Rico Andrade v. United States of America, et al.

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Maria Fernanda Rico Andrade v. United States of America, et al., No  2:15-cv-00103 (S.D. Texas, filed Feb. 27, 2015)

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.

In June 2014, Maria Fernanda Rico Andrade, Mr. Lozano’s mother, filed an administrative complaint against the Border Patrol, which was denied in August 2014. On February 27, 2015, Ms. Rico filed a lawsuit in the District Court of Texas. The complaint alleges an unconstitutionally excessive use of force and a pattern and practice of border patrol agents who, by placing themselves in front of moving vehicles, intentionally expose themselves to additional risk which creates a justification for the use of deadly force. The complaint also alleges the fatal shots fired by the agents were from the side and the rear, occurring after the car had already passed them and making the decision to use force unreasonable.

On October 6, 2015, Defendants filed a motion to dismiss. On March 27, 2017, Defendants filed a motion for summary judgment.

On July 12, 2017, the court granted Defendants’ motion to dismiss on Plaintiff’s FTCA and Bivens claims and struck as moot Defendants’ motion for summary judgment. The court ruled that it lacked subject matter jurisdiction over the FTCA claims and that the statute of limitations on the FTCA and Bivens claims had run.

In August 2017, Plaintiff moved for reconsideration of the decision, which Defendants opposed. On September 18, 2017, the court denied Plaintiff’s motion for reconsideration.

Counsel: Robert C. Hilliard | Singleton Law Firm, APC; Hilliard Munoz Gonzales, LLP

Contact: Robert C. Hilliard | bobh@hmglawfirm.com | (361) 882-1612

Perez, C.Y. v. United States

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Perez, C.Y. v. United States, 3:13-cv-01417-WQH (S.D. Cal., Fourth Amended Complaint, filed Sep. 22, 2016); 17-56610 (9th Cir., filed Oct. 19, 2017) 

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, the U.S. Department of Homeland Security (“DHS”), U.S. Customs and Border Protection (“CBP”), the U.S. Border Patrol (“USBP”), and various Border Patrol supervisors and agents in their individual capacities for the wrongful death of her husband, Jesus Alfredo Yañez Reyes.

On June 21, 2011, Yañez and Jose Ibarra-Murietta crossed the border from Mexico into the United States. Soon thereafter they were apprehended by Border Patrol agents Chad Michael Nelson and Dorian Diaz. While Yañez managed to escape back to the Mexican side of the border through a small hole in a fence, Agent Nelson tackled Murietta to the ground and began to strike him. Yañez climbed a tree that leaned against the Mexican side of the fence near the area where Agent Nelson was beating Murietta.

The events that followed are in dispute. Agents Nelson and Diaz allege that, during Nelson’s struggle with Murietta, Yañez threw one or two rocks in the direction of Agent Nelson, neither of which hit him. They further allege that Yañez threw a nail-studded board that struck Agent Nelson in the head. Murietta, meanwhile, asserts that Yañez never threw anything at Agent Nelson, but instead attempted to stop Nelson’s beating of Murietta by threatening to record the scene on his cellphone.

In both versions of the event, Diaz then instructed Yañez to come down from the fence. Without any further warning or provocation from Yañez, Diaz shot Yañez directly in the head, killing him. Yañez fell out of the tree on the southern side of the fence, and neither agent attempted to render any assistance to him. Agent Nelson sustained only minor injuries, none of which originated from rocks or a nail-studded board.

Plaintiffs argue that, regardless of which version of events is accurate, the agents unlawfully used excessive lethal force against Yañez. Both agents admitted that neither of them gave Yañez any verbal command or warning to stop throwing objects. Furthermore, Yañez’s alleged conduct did not create a risk of death or serious injury; the rocks were small, they did not hit the agents, and the allegedly thrown nail-studded board did not cause Agent Nelson any injury. There was no evidence that Yañez was about to throw any other objects in the moments before the shooting.

Yañez’s death was not an isolated event. According to a detailed report by an expert witness in the case, Thomas Frazier, Border Patrol agents along the U.S-Mexico border have regularly used lethal force against persons of perceived Hispanic or Mexican nationality. Plaintiffs allege that Border Patrol supervisors and other various agents within DHS acquiesced and tacitly approved of the excessive use of force against persons crossing the border. Between January 2010 and October 2012, Border Patrol agents responded to an alleged thrown rock with deadly force at least twenty-nine times.

Plaintiffs claim that the Rocking Policy violates international peremptory norms against extrajudicial killings, bilateral treaties, and domestic law, including the Fourth and Fifth Amendments and a federal regulation that prohibits the police from using deadly force in the absence of a significant risk of death or serious physical injury. Plaintiffs seek compensatory and punitive damages, reasonable attorney fees, and other reasonable relief.

On February 22, 2016, Defendants filed a motion to dismiss and/or to strike portions of the Plaintiffs’ complaint, seeking to strike all causes of action alleged by the Plaintiffs other than their Fourth Amendment excessive force claim against Agents Nelson and Diaz and then- Border Patrol Chief Michael J. Fisher. In late March 2016, the judge granted Defendants’ motion in part and denied it in part.

Following the District Court’s decision, on September 22, 2016, Plaintiffs filed a fourth amended complaint. On October 20, 2016, Defendants again moved to dismiss the complaint.

On March 3, 2017, the Court granted in part Defendants’ Motion to Dismiss the Fifth Amendment Claims. In addition, the Court dismissed the Plaintiffs’ FTCA claims. On April 1, 2017, the remaining two individual defendants filed a motion for summary judgment with respect to the surviving Fourth Amendment claims. On September 21, 2017, the District Court entered an order granting Defendants’ motion, declining to find a Bivens remedy for Plaintiffs’ alleged Fourth Amendment violation and also concluding that qualified immunity barred suit. Plaintiffs have filed an appeal with the Ninth Circuit.

The parties completed appeal briefing in May 2018, and the case was argued in November 2018. In May 2019, the court withdrew the case from submission pending a decision from the Supreme Court in Hernandez v. Mesa, a case that addressed the availability of a Bivens remedy for victims of cross-border shootings. Following the Supreme Court’s decision in Hernandez limiting th’e availability of Bivens, 140 S.Ct. 735 (2020), the parties submitted supplemental briefing. On August 9, 2021, the case was resubmitted. On August 16, 2021, the Ninth Circuit issued an opinion affirming the district court’s dismissal of ATS and FTCA claims and granting summary judgment for Defendants on Plaintiff’s Bivens claims.

Counsel: Singleton Law Firm, APC; Hilliard Munoz Gonzales, LLP; Hilliard & Shadowen, LLP

Gallegos v. United States of America, et al

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Gallegos v. United States of America, et al., No. 5:14-cv-00136 (S.D. Tex., Amended Complaint filed June 23, 2015)

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 September 3, 2012, Arevalo and his family were celebrating his birthday in a park in Mexico bordering the Rio Grande when a U.S. Border Patrol airboat pulled beside a man swimming in the river. The two agents, Matthew Lambrecht and Christopher Boatwright, were responding to a report that three people had swum over to the Texas border. Witnesses allege that the man in the river was swimming back to Mexico in order to evade capture. One of the Border Patrol agents on the boat attempted to catch the person swimming in the river using a long boat hook. A crowd gathered on the Mexican shore as onlookers shouted at the two agents to leave the man alone. Arevalo ran toward the crowd. The agents in the airboat later reported that about 20 people on the Mexican shore began throwing rocks at the boat, but Mexican witnesses vehemently denied this. One of the agents on the boat aimed and fired at least five shots at the crowd, which included children. Two bullets hit Arevalo. He was rushed to a hospital but was pronounced dead after an unsuccessful attempt to revive him.

Plaintiffs filed a complaint in the U.S. District Court for the Southern District of Texas alleging that the agents unlawfully used excessive force in shooting Arevalo. Multiple eyewitnesses directly contradict Border Patrol’s assertion that Arevalo was throwing rocks before he was killed. Plaintiffs assert that, even assuming arguendo that Arevalo was throwing rocks, the agents’ response was grossly excessive; a cellphone video of the incident demonstrates that when the agents opened fire, they were beyond the distance at which any thrown rock could pose a risk of death or serious bodily injury, and in any case, the agents could have shielded themselves by moving the boat further from the Mexican shore.

Plaintiffs allege that the agents were acting pursuant to the Border Patrol’s “Rocking Policy,” which permits the use of lethal force against persons throwing rocks and other objects in the direction of Border Patrol agents. Plaintiffs also assert that, despite condemnation from the Mexican government and international human rights organizations, high-ranking DHS and CBP officials have acquiesced to the Rocking Policy.

Plaintiffs allege that the Rocking Policy violates various international treaties as well Mexican sovereignty by permitting Border Patrol agents to fire their weapons into Mexico’s sovereign territory. They also claim that the Rocking Policy violates the Fourth and Fifth Amendments. Plaintiffs seek compensatory and punitive damages, reasonable attorney fees, and other reasonable relief.

Following the Supreme Court’s decision in Hernandez v. Mesa, 140 S. Ct. 735 (2020), the parties agreed that Plaintiffs’ Bivens claims should be dismissed. On May 22, 2020, Defendants filed a motion to dismiss Plaintiffs’ remaining claims under the Alien Tort Statute and the Federal Tort Claims Act. On July 6, 2020, Plaintiffs opposed Defendants’ motion to dismiss.

On September 15, 2021, the district court granted the United States’ motion to dismiss and dismissed all remaining claims for lack of jurisdiction.

Counsel: Robert C. Hilliard | Singleton Law Firm, APC; Hilliard Munoz Gonzales, LLP

Contact: Robert C. Hilliard | bobh@hmglawfirm.com | (361) 882-1612

Salem v. USA, et al.

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Salem v. USA, et al., No. 5:15-cv-02091-JGB-SP (C.D. Cal., filed Oct. 9, 2015)

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.

Mr. Salem’s suit includes Bivens claims under the Fourth Amendment (unreasonable search and seizure and use of excessive force) and the Fifth Amendment (equal protection). It also includes FTCA claims for assault, battery, false imprisonment, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence.

Defendant United States of America filed an answer to the amended complaint on January 18, 2017. Defendant City of Los Angeles filed an answer to the amended complaint on February 9, 2017. Individual Defendants also filed answers to the amended complaint on February 2, 2017 and March 07, 2017. The parties have agreed to stipulations for the Plaintiff’s inspection of the premises where Mr. Salem’s detention took place, and the Court accordingly entered a protective order regarding the Plaintiff’s entry and inspection of the premises on March 15, 2017.

On April 21, 2017, the individual federal Defendants filed a motion to dismiss, which Plaintiff opposed. On June 13, 2017, the district court denied Defendants’ motion to dismiss. The parties entered into a settlement agreement on September 12, 2017, in which Defendant USA agreed to pay Plaintiff $45,000 under the FTCA in exchange for dismissing all other claims.

Counsel: Counsel on American-Islamic Relations, CA l Law Office of Shafiel A. Karim

Contact: Marwa Rifahie (Civil Rights Managing Attorney) | mrifahie@cair.com

Rodriguez v. Swartz

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Rodriguez v. Swartz, No. 14-02251 (D. Ariz., filed Sept. 8, 2014)

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, no official was under any 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, unjustified, and unlawful. 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.

On July 10, 2015, the District Court granted in part and denied in part Defendant’s motion to dismiss. Disagreeing with the en banc Fifth Circuit, Chief Judge Raner C. Collins held that Rodriguez’s Fourth Amendment claim could proceed and that Agent Swartz was not entitled to qualified immunity.

In mid-September 2015, the Department of Justice charged Swartz criminally with second degree murder. Following several postponements, the Swartz criminal trial began in Tucson on March 22, 2018.  The jury found Swartz not guilty of second-degree murder on April 23, 2018, after hearing several weeks of testimony from Nogales Police Department officers, Border Patrol agents, forensics experts, and Swartz himself.  The same jury failed to arrive at a unanimous decision as to the lesser-included offense of voluntary manslaughter, leaving open the door for a future criminal prosecution of the lower-level offense.  On May 12, 2018, the U.S. Attorney Office in Tucson announced that it would re-try Swartz on the lesser charge. Swartz was subsequently acquitted of involuntary manslaughter on November 21, 2018.

In the civil case, Defendant filed a Notice of Appeal with the Ninth Circuit. Briefing was completed as of June 1, 2016 and oral argument held on October 21, 2016. The panel indicated its intent to hold its decision pending the Supreme Court’s resolution of Hernandez v. United States, which was decided on June 26, 2017.

On August 7, 2018, the Ninth Circuit, in an opinion by Judge Kleinfeld with a dissent from Judge M. Smith, affirmed the District Court’s decision denying Defendant qualified immunity, reasoning that “J.A. had a Fourth Amendment right to be free from the unreasonable use of deadly force by an American agent acting on American soil, even though the agent’s bullets hit him in Mexico.” The Court extended a Bivens remedy, finding that Plaintiff had no other adequate alternative remedy and that no “special factors” counseled hesitation in extending such a remedy. The Court did not reach the Fifth Amendment arguments but stated that, if the Fourth Amendment did not apply because J.A. was in Mexico, the Fifth Amendment’s “shock the conscience” test may still apply.

Unfortunately, on May 28, 2019, the Supreme Court granted certiorari for a second time in Hernandez v. United States, sub nom. Hernandez v. Mesa, and the court stayed Rodriguez pending the outcome of Hernandez. On February 25, 2020, the Supreme Court issued a second decision in Hernandez, holding that the Hernandez family could not rely on Bivens v. Six Unknown Agents, 403 U.S. 388 (1971) to bring their claims. This outcome essentially foreclosed the possibility of a Bivens remedy in Rodriguez as well. As a result, the Supreme Court granted certiorari in Rodriguez, vacated the Ninth Circuit’s 2018 opinion, and remanded the case back to the Ninth Circuit for consideration in light of Hernandez. On April 7, 2020, the Ninth Circuit likewise vacated the district court’s decision and remanded the proceedings. Following the remand, the case was dismissed and is now closed.

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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.

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Counsel: Iredale & Yoo, APC

Contact: Julia Yoo | (619) 233-1525

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