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, 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.
On June 21, 2011, Yañez and Jose Ibarra-Murietta crossed the border from Mexico to 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 the Department of Homeland Security (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 government’s Rocking Policy violated international peremptory norms against extrajudicial killings, bilateral treaties, and domestic law, including Fourth and Fifth Amendment 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’ attorneys 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 Chief of the Border Patrol 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 Plaintiff’s 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 the 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, No. 17-1678 (U.S.), a case that will address the availability of a Bivens remedy for victims of cross-border shootings.
Counsel: Singleton Law Firm, APC; Hilliard Munoz Gonzales, LLP; Hilliard & Shadowen, LLP
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