The Estate of Anastacio Hernandez-Rojas v. United States

The Estate of Anastacio Hernandez-Rojas v. United States
No. 11-cv-522 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.

Counsel: Iredale & Yoo, APC

Contact: Julia Yoo | (619) 233-1525

Press Coverage:

Advertisements

Osorio v. U.S. Customs and Border Protection

Osorio v. U.S. Customs and Border Protection, 8:14-cv-01758-DOC-AN (C.D. Cal. filed Nov. 4, 2014)

On June 6, 2014, Mr. Osorio filed with CBP a request under the Freedom of Information Act (FOIA) seeking “any and all records” under his name.  Mr. Osorio sought the information in order to obtain records from an incident at the border several years earlier, which potentially affected his eligibility to apply for lawful permanent resident status.  In general, with some exceptions, the FOIA statute requires agencies to respond to requests within 20 business days.  After having waited five months for CBP to produce his records, Mr. Osorio filed a lawsuit seeking a court order forcing CBP to conduct a search and produce records related to his request.  Immediately after filing, CBP produced the documents. Mr. Osorio and CBP subsequently settled the case and jointly moved to dismiss it, with the government agreeing to pay costs and attorney fees.

Counsel: Stacy Tolchin

Contact: Stacy Tolchin | 213-622-7450 | stacy@tolchinimmigration.com

ACLU of San Diego and Imperial Counties v. DHS et al. (PERF Report FOIA)

ACLU of San Diego and Imperial Counties v. US Department of Homeland Security, US Customs and Border Protection, No.  3:14-cv-01272-BTM-JMA (S.D. Cal., filed May 22, 2014)

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.

The following week, CBP finally released the full report, along with a revised Use of Force Policy Handbook that reflected many of PERF’s recommendations. The parties then stipulated to dismissal of the case on June 19, 2014. The case is now closed.

Counsel: ACLU of San Diego and Imperial Counties

Contact: Mitra Ebadolahi | ACLU of San Diego & Imperial Counties | mebadolahi@aclusandiego.org

Askins and Ramirez v. DHS, et al.

Askins and Ramirez v. Department of Homeland Security, et al., No. 12-CV-2600 W BLM (S.D. Cal., filed Oct. 24, 2012) & No. 16-55719 (9th Cir., filed May 17, 2016)

This case is about preserving the fundamental First Amendment right to hold our government accountable at the border and challenging CBP’s abusive behavior of those who seek to exercise these rights. Ray Askins is a U.S. citizen and an activist concerned about environmental issues at the border. While standing on a public street in Calexico (inside the United States), he took photographs of the Calexico Port of Entry building to illustrate a presentation he planned to give on vehicle emissions at ports of entry. Christian Ramirez is a U.S. citizen and human rights activist who, while standing on the U.S. side of the border, photographed male CBP officers improperly frisking female travelers at the San Ysidro Port of Entry.

When they took their photographs, both Mr. Askins and Mr. Ramirez were on the United States side of the border, in areas open to the public. In both cases, CBP officers detained, harassed, and threatened them, temporarily confiscated their cameras, and deleted their photographs. CBP officers also physically abused Mr. Askins. The case seeks to prevent CBP from interfering with or otherwise suppressing the public’s lawful recording of federal border officials’ public activities. Plaintiffs seek declaratory and injunctive relief, as well as damages on behalf of Mr. Askins.

In September 2013, the district court denied in part and granted in part the government’s motion to dismiss. The government then filed a motion for clarification of the court’s order on the motion to dismiss.

In April 2014, the district court granted in part and denied in part the government’s motion for reconsideration. In this order, the district court reaffirmed its First Amendment analysis in its September 2013 order on the government’s motion to dismiss. The court, however, ordered the parties to submit supplemental briefs relating to Plaintiffs’ Fourth Amendment claims.  The parties filed supplemental briefs in late spring 2014.

In January 2015, the district court issued another order granting in part the government’s motion for reconsideration. This order addressed Plaintiffs’ Fourth Amendment claims.

Plaintiffs filed an amended complaint responsive to the district court’s orders. Once more, the government moved to dismiss, and Plaintiffs opposed.

In March 2016, the district court dismissed Plaintiffs’ first amended complaint. Plaintiffs appealed to the Ninth Circuit; they filed their opening brief on September 26, 2016. The CATO Institute and the Reporters Committee for Freedom of the Press filed amicus briefs in support of Plaintiffs-Appellants. Appellate briefing was completed in February 2017. On February 16, the Ninth Circuit heard oral argument on Plaintiff’s appeal to S.D. Cal’s dismissal of the first amended complaint. As of April 2018, the Ninth Circuit’s decision is pending.

Counsel: ACLU of San Diego & Imperial Counties

Contact:  Mitra Ebadolahi | ACLU of San Diego & Imperial Counties | mebadolahi@aclusandiego.org